A popular perception (helped no doubt by Dickens in his savaging of the legal profession in Bleak House) is that lawyers were once paid by the word and this is why they like to use fifty when only ten will do. Whilst it is true that Scriveners (as they were known) were once a feature of the UK legal profession the practice of billing on a per-word basis was banned in the 19th century. However, lawyers who try to embrace a plain English approach to drafting can be met with the comment that "it doesn’t sound very legal".
A conundrum then presents itself for lawyers. Go too far in addressing the user experience (UX) of a legal document and you risk undermining your credibility as a "proper lawyer". Address all the legal issues in time-honoured drafting custom and practice and you risk accusations of legal mumbo jumbo.
Here comes the legal
Terms and conditions are usually the last thing a user sees as they move from browsing to buying. They are a vital part of the customers wider UX journey. So, what to do? What does the UX conversation look like when played out in the context of drafting legally binding agreements? Don't you need all the small print? Don't you need all those words? Seasoned readers of terms and conditions will recognise two schools of thought on this.
The first can be characterised as the "cuddly feely" approach. This is where terms talk to you as if you were best friends (for example "here comes the legal"). The problem with warm and cuddly is that at some point you are going to need to address some substantive issues (warranties, liabilities etc). A warm cuddly UX which then turns to hardcore legalese gives the impression that the warm cuddly stuff is just a veneer.
The second approach can be called "hiding in the hyperlink". Terms are incorporated by way of reference via a hyperlink. The advantage is that you can include as much verbiage as you like behind a single hyperlink and the binding contractual document will still look and feel like a succinct agreement. The downside is that if it’s a feature of your product/service then it will need to be covered in your contract and therefore people will find out about it at some point. Why not make the effort to tell them upfront by having a UX that encourages disclosure and ease of understanding?
If good UX is created through transparency, does a bad UX mean the author is trying to hide something? How do you go about getting good UX?
Enter design thinking
Design thinking is a methodology that has long been used by organisations to foster innovation. The human-centred approach puts the user at the centre of the creative process, with a focus on quick prototypes and iteration. Stanford University developed design-thinking as an academic subject for the legal sector when establishing its Legal Design Lab in 2013. The ultimate objective for design thinking in the legal sphere is to make legal information more digestible for clients and staff.
So, could you deploy design thinking to re-work your Ts&Cs? Some teams are doing just this and employing design thinking when drafting their standard terms. Starting the process by thinking about what the purpose of the contract is. Is it removing ambiguity, settling disputes or facilitating trade? It's likely your contract will look (and feel) different to the reader (the Customer) depending on where you start out from.
A recent article by Reena SenGupta in the Financial Times highlighted the work of several in-house teams in this area. Law firms have always prided themselves on putting clients' needs at the heart of their service. In this context bringing the design thinking concept into the provision of legal services seems like a natural evolution. Big law firms are also getting in on the idea by teaming with design firms and offering training in design thinking to their lawyers.
There is a huge amount written about Legal Technology with endless lawyers, technologists, data scientist etc extolling the potential for technology, artificial intelligence and data in transforming the world of legal services. Alone, none of these things is likely to bring about the paradigm shift so many are predicting. Could a design-driven approach to legal innovation unlock promising ideas for how legal services can be improved, and then get them developed in quick and effective ways?
Design-thinking is an approach that puts user experience at the heart of the creative process, with a focus on creating quick prototypes to solve a problem