The concept of ‘legal design’ is one of the most exciting products of the current period of technological innovation. It merits really serious examination because it seeks to put the user at the centre of any reform.
Legal design has been a force for about a decade. Stanford University’s D. School and Legal Design Lab were both founded in 2013. Its development has very much been spearheaded, on the one hand, by the energy and commitment of Margaret Hagan, current head of the latter. On the other hand, the outstanding Dutch Rechtwijzer site provided an early illustration of its potential in action. This began a little earlier and was relaunched in what became known as Rechtwijzer 2.0 in 2012.
Since then, legal design has proved that it can unleash enormous energy in building legal reform around the world. And that raises the interesting question of how far we can take the idea. Could it attain the status of the status of ‘gamechanger’ as identified by the Rechtwijzer’s original creator, the Hague Institute for Innovation of Law: one of the ‘justice innovations that provide scalable and sustainable opportunities (products, services and models) to enact the (local) solutions most responsive to people’s justice needs.’? That was its hope a decade ago for the product from which it has now itself moved on.
Legal Design as a concept can be a little slippery to define. A helpful compilation of approaches comes from Legal Geek which brought together a number of definitions in promoting a conference on the topics couple of years ago. Margaret Hagan contributed, ‘Legal Design is an innovation approach — that means focusing on the humans within the legal system to understand where the crucial breakdowns in the system right now exist — and to make the creative leap to define what a better system might be. It means a priority on who the ‘users’ of the system are — whether it be people who are ‘lay’ outsiders trying to use it to solve problems, or the ‘professionals’ who work inside it. A legal design approach has us talk to these people, observe them, co-create with them, and test with them — so that we can make a system that actually solves problems, and does so in the most usable, useful, and engaging way possible.’
Legal tech entrepreneur Richard Mabey said it ‘is a mindset as much as a discipline’. Consultant and coach Emma Jelley declared it as ‘a movement to make law more accessible, more usable, and more engaging. Its building blocks are plain language and attractive visuals (perhaps even haptics) all intended to enhance user experience. Legal design embraces but goes beyond technology.’
Information designer Stefania Passera contributed another version, ‘’Legal design puts the needs of citizens, consumers, and businesses before those of lawyers. Its ultimate goal is preventing legal problems from arising and empowering the end-user. Systems, processes, and documents must be useful and usable outside of court, in everyday scenarios.’
‘Futurist’ Meera Sivanathan pulled it all together, ‘“Legal design is an human-centered approach to legal problem solving and legal innovation. It combines the lawyer’s legal expertise with the designer’s mindset and methodologies and technological potential to create legal systems, services, processes, education and environments that are more useful, useable, understandable and engaging for all.’
Let me sum up in my own language. Legal design is a distinctive approach with the following attributes:
- It sees law as a process not a product – so that, for example, a legal design approach to divorce would be less concerned with divorce statutes then how someone actually attains a just separation.
- It is user-centred. You begin with what the user wants and then rigorously analyse the process from their point of view.
- It involves re-conceiving processes through multi-disciplinary collaboration, visualisation and a whole range of techniques that help to bring to bear new approaches to old problems.
Characteristic of the legal design process are wider design techniques like ‘design sprints’, ‘being agile’ and ‘scrums’. Design sprints show the process well. Behold this example : ‘The big idea with the Design Sprint is to build and test a prototype in just five days. You’ll take a small team, clear the schedule for a week, and rapidly progress from problem to tested solution using a proven step-by-step checklist. It’s like fast-forwarding into the future so you can see how customers react before you invest all the time and expense of building a real product. But the Design Sprint is not just about efficiency. It’s also an excellent way to stop the old defaults of office work and replace them with a smarter, more respectful, and more effective way of solving problems that brings out the best contributions of everyone on the team—including the decision-maker—and helps you spend your time on work that really matters.
Agile methodology is so mainstream that it nows merits its own page on the UK government’s website. It is a good place to go if you are for ever confusing scrums, kanban and lean approaches. The UK encourages the ecumenical: ‘You don’t have to work with just one method, you can choose tools and techniques from several to meet your team’s needs. Each method has its own language for describing basic tools and techniques, the important thing is to understand: why you’ve chosen a tool or technique [and] ‘its agile objective’.
Peep through the door of a Ministry of Justice in agile mode and the picture is likely to be of walls covered with different coloured post-its, white boards, draft descriptions of typical users, statement of aims. The slightly stale air will be redolent of crisps, red bull and coffee mixed with energy, excitement and a slight sense of desperation to get to the goal on time. You would get the same in a non-government setting – except that there might be beer. There is the hint of an evolved hackathon.
In the US, Stanford has been particularly active in legal design projects and a website helpfully states both its four overall themes (justice innovation, a better legal internet, smart legal tools and a public interest tech pipeline) and gives examples of its work. This has involved collecting together interventions in the eviction process for tenants over the country and interactive information , specifically, for those threatened by eviction in Arizona.
So, there is no doubt that legal design represents a new – and potentially transformative – process in law reform. It has proved itself in a myriad of projects in a range of countries. And, if you take the example of the structure of legal aid assistance in England and Wales, you can see how valuable it might be in redesigning a system which has been influenced by its history and the relative powerfulness of various interest groups. After all, its once world-beating legal aid system deploying the public financing of private providers was originally a wheeze dreamt up by the Law Society to allow the abolition of the salaried lawyers it had been forced to employ during the Second World War. The reason why salaried lawyers were defeated in a second incarnation as law centres again in the 1970s was the power of the same Society to squeeze out of government money for a national legal advice scheme delivered by private practice. However, and inconveniently for pure theorists of ‘the profession as conspiracy against the laity’ variety, the reason why legal aid retains such strong support and relative coverage compared to many other jurisdictions is … the presence of private lawyers in large numbers within the state-funded scheme.
So, to adopt an old saying, ‘If I wanted to get there I wouldn’t start from here.’ Legal aid in this country might seem to cry out for a macro legal design approach. In 2010, its structure made sense but it was very expensive. In 2021, it is incoherent. Coverage is, in many ways and many places, random or non-existent. And that points to the strength and the possible limitations of the legal design approach. Legal design is a galvanising and widely used tool but one reason for that is it is essentially value neutral. That is not a problem or a criticism. Indeed, it is probably an advantage in gathering acceptance for a tool which, in its implications, can be little less than revolutionary. However, there is a point here which can be made in various ways. This is Shakespeare’s: ‘There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy’.
Take another example of the traps in deploying a design theory without enough context. The logical way to deliver criminal legal services is through a high quality public defender service. Despite British domestic prejudice, they exist. In the mid-1990s, I would have thought I had died and gone to heaven to work for Oregon’s public defender. But, I live in a jurisdiction which has since then chronically underfunded even its Crown Prosecution Service. Who would trust it with a Public Defender? As my early indiscretions come to light and I am prosecuted for international crime, terrorism or fraud, keep my case in England and Wales. I want a domestic, legally aided QC to defend me in a justice system that is the envy of every rogue Russian mafiosi. Design is one consideration in building the best available system. But, it behoves us to add a dash of hard bitten realism.
To return to our beginning, is legal design a game changer? The answer, if you accept HiiL’s definition, probably remains ‘yes’. It is, indeed, a ‘justice innovation that provide[s] scalable and sustainable opportunities (products, services and models) to enact the (local) solutions most responsive to people’s justice needs.’ It might also come within the online Cambridge Dictionary definition of ‘something or someone that affects the result of a game very much’. But, it has the limitation of not being, of itself, necessarily transformative in the way that we would like. After all, even the concept of ‘user-centredness’ is not unproblematic. Landlords and governments are just as much users as tenants and refugees – and, indeed, have legitimate interests to be considered.
We can test the power of legal design as a concept. Imagine a demonstration outside a Ministry of Justice of your choice. The protestors demand an improvement in the position of the poorest in society. They hold up pictures of the downtrodden of their jurisdiction – the asylum-seekers and immigrants, the unemployed, tenants living in unfit conditions and being evicted from fit ones, the homeless. And, there – just out of sight – is a banner with words. The crowd obscures your view. You strain to make out the whole thing but it begins ‘We want…’ This sentence is unlikely – as the slogan comes fully into sight – to read ‘user-centred legal design’. It is going to be something like ‘equal justice’, ‘access to justice’ or just ‘justice’.
Many aspects of our legal systems need a makeover on legal design principles. These can – and should – be applied to the whole and to its constituent parts. Legal design is a genuinely exciting and innovative tool. But it does not disparage the concept at all to say that it needs to be tempered by other considerations. These include the need for sustainable and defensible solutions and an overall commitment to justice for all.
This post fleshes out an argument made in a draft analysis of ‘Poverty, Technology and Government: justice and legal assistance for people on low incomes in the 2020s’. It responds, in part, to an argument in twitter comment that the argument should be more user-centric and considers the legal design movement in more detail. It is, thus, item 2 in an attempt at a crowd-sourced discussion. Pile in with comment on email or by twitter.