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  • Writer's pictureWefaq Law Firm

What is legal design? And why is it important for an in-house lawyer?

Updated: Apr 16, 2023

What is legal design?

Legal design is effectively a term that people use that can be quite confusing because what on earth does it mean? And it just reminds people of pretty contracts “i think!”. That's not what it is. So design thinking is a very old methodology that has been used across the board in various industries, and it's effectively a method by which you create solutions to problems by really focusing in on the user's needs. So in the legal world as a lawyer, you might say, I need to cover myself when I write this contract. So if anything happens, it's waterproof. And no one can say that my drafting was terrible. Or they might say, I need to create this contract so that if the judge sees it, they'll be able to interpret it in this way. But by doing that, we're ignoring the “main user” of that of that product, because your contract is a product, and just to be really clear, design thinking in law doesn't only apply to contracts, it applies to everything that we do, not just in the in-house space, but generally. And so it's important to focus on the predominant user so that you can create something that's fit for purpose.

The “persona” of the judge is a very rare one that will ever see that thing that you've created!

So in the use case of a contract, the end user is usually the business person, It's not even the lawyer in-house or externally that's drafting or reviewing or negotiating that contract. It's the business user and that business user will need to interpret it, operationalize it potentially and then work on a project or receive a service on the basis of that contract. What good is it if the business person can't understand it, or sort of understands it, but needs support from a lawyer to interpret how it's going to work on the ground?

You're not really creating something that's fit for purpose. Fit for purpose in law doesn't necessarily mean it's waterproof in case this goes to court. In the case of NDAs, less than 1% of them get litigated. In the world of law, less than 2% of disputes get litigated because most of them get settled outside of the courts. So the “persona” of the judge is a very rare one that will ever see that thing that you've created.

Instead, you should be focusing on the needs of the user, and by focusing on the needs of the user, you need to get to know who the user is. So business person doesn't really want to read the legalese, doesn't understand it. How does that person feel when you put a contract filled with legalese in front of them? Or if you ask them to follow a process that's fit for purpose for the legal team but is really confusing for the business person.

It's just not going to work, They're not going to engage or they will engage, but be grudgingly! So there's a huge knock-on effect when it comes to that.

We're taught perfection from the outset, and if you screw it up, you're screwed!

Taking a step back, applying design thinking is just taking a very empathetic approach towards the user and using processes whereby you don't just jump to the solution, but you empathize with the user, you understand what they need. You do a discovery piece there and then you put together some things that you think might be viable. You test them, you iterate, and then you create your solution. In-law, that's not something that we're ever taught to do. We're taught perfection from the outset, and if you screw it up, you're screwed! because you're going to get sued and your reputation will be damaged.

So taking that fail fast, fail quick, get it right through iteration approach is design thinking in law and the output is an artifact that is fit for purpose for the end user and not for a scenario whereby it will go back into the legal system.

In essence, legal design is all about applying design thinking, and design thinking is all about creating things that are fit for purpose. The only way to achieve this is by designing your legal processes, contracts, etc. with a user centric approach to help you really understand legal design, you can view your legal matters such as contracts like a product, when designing a product, you have to think about how the main user will THINK,FEEL & ACT when interacting with it. Keep this front of mind at all times to create a product that's fit for purpose for your main user, not a hypothetical unlikely user such as a judge.

What are the benefits that you'll find if you do implement legal design throughout your work particularly in-house?

Your job as an in-house lawyer isn't just to review contracts and advise the business. It's also to create processes that are going to allow you to do your job effectively.

If we take the in-house example, less than 0.37% of businesses, money is spent on the legal department. So the budgets are not there for legal, so they're always understaffed. And in our experience we found that there's about one lawyer to every 100 employees within a business. So that means that as a legal department, you're super stretched all the time. Plus, in a fast growth organization particularly, you'll find that you're always having to do really complex stuff because there's changing regulation. So you want to be really strategic about the things that you do. And the strategy doesn't mean I have a plan. It means I'm really smart about the things that I do, but also the things that I don't do. So you have to be a little bit cutthroat! when it comes to choosing the things that you don't do.

Now the things that you don't do should be things that aren't really adding any strategic value to the business. Your best place as an in-house lawyer to do the work that's going to add the most value and do the work that requires someone in-house to do it as effectively as possible. So that's that's the premise. That's why you need design thinking, right? You need to do as much as you can, add as much value as you can with the little resource that you will have. So how do you do that?

The way to do that is to make sure that the things that you're not able to do are still being done well. And you can do two things. You can either “outsource” them to a legal company and they'll do a good job. But there are other things that you want to “in-source”, and that means giving them to other people within the organization that are well placed to do the job. So that's one thing, you're in-sourcing or you're giving, for example, DSARs, “Data Subject Access Requests”, you're giving those to your customer services team because they're really well placed to do it, and if you give them a really good playbook, they can do it with little risk.

And the other thing is you want to make sure that you're not wasting your time doing repetitive things. So first, insourcing. How do you get people within your business who aren't lawyers to do the things that you need them to be doing with minimal risk? And the other thing is, when you do do certain things, how do you make sure that your you're following a process that will enable you to do the best job possible without a lot of repetitive work?

How do you get people within your business who aren't lawyers to do the things that you need them to be doing with minimal risk?

That's where the design thinking approach applies really well. If we take the example of in-sourcing, you decide that Data Subject Access Requests are quite repetitive and actually you don't need to be doing them, your customer service team can do them really well if you give them the guidance that they need. The way to approach that is, first of all, to get to know the customer services team, who are these guys? What are they doing in their day to day? Are they actually best placed? What backgrounds have they got? Is there anyone within that team that's really interested in developing a skill set that they don't already have, maybe in the legal team?

You don't just start off by going, we're giving this to a customer services team! You start off by going, I've made the assumption that that's the right team. Now let me go and get to know them and figure out whether they are in fact the right team. If they are, who within that team do I need to influence the most? And then what do they need from me? And how best do they follow instruction so that I can provide them with a guidance note, a playbook, a canned responses spreadsheet that they can follow as seamlessly as possible with minimal support from us, but in turn making sure that they're not increasing the company's risk profile because ultimately that's a lawyer's job, It's to enable business, but also to minimize risk. So how do you do that?

By getting to know them, starting off small. So you could put together an MVP, (a minimum viable product), which can just be a very basic word document or spreadsheet. Give that over to them, get them to respond to the DSARs and then see how it goes. Hold their hand for a bit and learn from it, iterate, and then go back. So by the end of the process you have a really fantastic self running DSAR function, you're not even running yourself and yet you've just saved yourself loads of time because you're no longer doing that work, another team is. So that's the premise. That’s the insourcing bit.

And then, when it comes to you doing the work, you want to make sure that people are giving you all the information that you need from the outset. That's a really good example of where design thinking can apply, because if you're a legal team and say, for example, you're receiving instructions from all over the business, you can really streamline that process by creating a legal front door. Or buying a piece of tech that does that for you. And in that process, you should really be thinking about the questions that you're asking because you don't want to be asking questions that are confusing because people just won't engage and you won't get the information that you need. So it's about getting to know the people, testing out lots of different things, finding the best solution, iterating, making it great and deploying it.

Being strategic doesn't mean I have a plan. It means I'm really smart about the things that I do, but also the things that I don't do!

The workload of in-house legal teams has been on the rise for years now, so you have to be really strategic about the things that you spend your time on and the things that you don't. To decide, you should split your tasks into three buckets:

  1. “keep it inside the legal department.” As the legal team, your task should add strategic value to the business. You need to do as much as you can that adds as much value as possible with the little resource that you have to hand. So you need to be strategically selective.

  2. “in-sourcing.” How can you distribute ownership of tasks with minimal risk to other people and teams in your business who are well placed to do the job?

  3. “outsourcing.” Outsource overflow or specialist legal tasks that require a lawyer to a legal company to reduce the in-house burden while still ensuring a good outcome.

By applying design thinking to each of the processes above, these will have the right people working on the right things with both confidence and efficiency.

Your job as an in-house lawyer isn't just to review contracts and advise the business. It's also to create processes that are going to allow you to do your job effectively. And if you underpin that, that process creation by design thinking, then you're in a really good place because the processes you're creating are going to be fit for purpose, and they're going to give you the outcomes that you need. It's like building a product, isn't it?

You can't just blindly go into it and say, I think the world needs this product! You have to test, you have to iterate, you have to ask people, you have to do your research. And so that's a really big part of the in-house functions remit. And without that, you just you just see lawyers that are always drowning and not able to do what they need to be doing. And you're not effective.

Lawyers aren't generally taught this stuff. You are taught perfection and to get it right first time!

You have to know that your job is not just to do the law, your job is to set up a function that's scalable and easily operationalized, you're going to be tested on your finances as well. So that's within budget, that's your job. Your job isn't just this private practice job of a lawyer. It's a different, it's a different role altogether, and there's not so much literature around what the in-house role entails because it's actually quite a new phenomenon.

25% of lawyers now are in-house, which is huge. It's a huge growth. It's doubled over the last 15, 20 years. And so we're seeing this trend towards the in-house career path, which hasn't really been a thing. It's quite a new phenomenon. So we need to be clear what the remit of that role is. That's why legal ops is such a big deal now. And five years ago, people didn't even know what it meant. Legal ops is a fundamental part of the legal function, and without one, a legal function can’t perform very well because you're just spending your time doing repetitive tasks or administrative tasks or low level tasks and you haven’t got the room, the headspace to add the value.

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