By Milva Finnegan.
The new buzzword on the street is “legal design”. Legal design strives to transform the legal field to produce products that are user centric. Lawyers, academics, designers, and businesspeople have joined together to make legal communication clear, efficient, and user-friendly to a wide range of audiences. The goal is to focus on users’ natural behavior as the baseline to design interfaces that are easy to use, intuitive, and avoids performance errors. Legal design aims to make the law accessible to everyone. For contracts, this is imperative.
The reasons contracts are complex documents are driven by many factors. Mainly, due to the fact they are legal documents, and legal doctrine has its own technical language. Furthermore, the business environment contracts operate in has become more complex due to longer-term agreements, products and services combined in one transaction, and globalization.
Together these factors have caused contract documents to reach a point of complexity that even lawyers struggle to read, comprehend, and use them efficiently.
To solve the problem of complexity, user-centered design in contracts aims to simplify contract documents by focusing on the reader during the development process. Compared to legal design, user-centered design differs in that users are defined as the people who need the contract information to perform their jobs, not the entire population. Even within a company, specific contract actions are related to specific functions; not everyone requires all the information in the contract.
Design thinking promotes creativity, flexibility, and collaboration. Steve Jobs, one of the founders of Apple Inc, is a pioneer in user-centered design. He designed products that mirrored how users intuitively would interact with the products and he focused on simplicity and functionality simultaneously. To transform traditional hard-to-read and comprehend documents, we need to focus on producing aesthetically appealing AND functional products. Functional contracts serve two essential purposes:
As legal documents to protect the parties if something goes wrong, and
As business documents to serve as roadmaps for successful execution.
Looking back the root cause of why contract form and content have remained in its age-old archaic, black-and-white text only format is due to the dominant copy/pasting contract drafting process.
Common practice is to find the “best” prior contract or company template, edit it for the current business transaction, and send it on for review. The shift to incorporate design thinking into contract creation requires a change in how lawyers think and approach contract development.
What is user-centered contract design?
When analyzing contract content and clauses, it becomes evident that multiple users from different functions interact and rely on the contract information. Defining who the users and stakeholders are is a critical part of the process. Contract users vary throughout the contract’s lifecycle. Therefore, it is important to realize that contracts are dynamic documents not static documents to be negotiated, signed, and stored in a drawer. The process should be flexible and collaborative.
A user-centered contract design process integrated into the company workflow changes the approach from a linear task to an iterative process where it is ok to fail. Design thinking is a problem-solving approach that is both a process and a mindset. A creative process promotes ideation and allows for brainstorming to generate innovation. In the initial phase of exploring ideas, open-mindedness and consideration for others’ ideas are critical. The goal is to produce different solutions and design ideas to improve how the information is communicated.
Once solutions are defined, it is important to evaluate if they are better than the prior norm. User-testing is a crucial element of a design process to test if the new solutions are better. If the new solution is not an improvement from the prior solution, adjustments or new solutions are explored. It is vital to allow for failure because that is when we learn the most!
How do we incorporate design thinking into a lawyer’s daily technical job of developing contract documents? It is not feasible for lawyers to gather many different people in a room for brainstorming, storyboarding, and ideation when they are under a strict deadline to draft a contract for a hot business deal. Figure 1. outlines a four-phase user-centered contract design process that any lawyer or contract developer can use to integrate design thinking into their daily jobs. [1]
Figure 1. User-centered design process
First, it is essential to consider what the business transaction is. Understanding the elements of the business deal and selecting the correct contract type is critical. Often template contracts or copying a prior contract yield contract terms that are not applicable or not tailored to the specific exchange. The next step is to define the contract users and stakeholders, answering the question of who needs this information to perform their jobs?
Aligning the content with the users provides an outline of who should be part of developing or reviewing the contract.
I use the building blocks approach to develop contracts; in this approach, I consider each contract concept or clause as a standalone element, and only when combined is a contract document generated. Each building block is selected from either a clause library or model contract, reviewed and tailored for the specific transaction, and then organized logically in the document. Approaching the process from a macro-view to a micro-view with clear headings and subheadings layers the information for easy navigation and reading.
Legal Design is about visualization.
Contract simplification focuses on structure simplification to help readability, and using plain language to assure the intended audience can read and understand the information. To simplify complex information further legal design and visualization are imperative. For example, contract price and payment information in table format improve readability. Product specifications outlined in schematics or pictures communicates complex information instantaneously. Contract delivery and other timeline information outlined in Gant charts or timeline pictorials illustrates inter-dependencies clearly. One benefit of legal design is standardization, as the new design models can be replicated and reused.
The final step is to evaluate and review the contract document information. Most importantly, is the information correct and applicable to the business deal contemplated? Then consider is the language tailored to the specific audience, and is the page layout and document structured so that it is intuitive to navigate? Also, consider whether visuals communicate the correct information? Does the document meet the intended purpose? Have the relevant users and stakeholders reviewed their respective information?
In summary, integrating design thinking into contract development helps simplify complex contract information. Legal design is about designing products that are functional and user-friendly. Using a user-centered contract specific design process helps lawyers and non-designers shift away from drafting to designing contract documents. With a focus on the reader, considering multiple audiences with different backgrounds, language, and education, is central to how the information is presented. Developing the document in a collaborative process, one building block at a time, assures the content is tailored to the business deal. Visualization is the key element in transforming traditional black and white contract documents into user-friendly, inviting documents that everyone can read, comprehend, and ultimately take the intended actions.
Notes
[1] Finnegan, M. (2021). User-centered design: A key to contract simplification. Acta Wasaensia. University of Vaasa. https://osuva.uwasa.fi/handle/10024/12480
About the Author
Milva Finnegan, PhD, recently completed her doctorate degree in Economics in business law at the University of Vaasa in Finland. Her research focuses on merging contract law and contract design to produce simplified and usable contracts that all users can understand.
She recently joined KPMG US as the director of client contract value center. Prior to KPMG Milva ran a contracts consulting company, Karhu, LLC, for 10 years. Her company worked with clients implementing contract management best practices, integrating electronic Contract Lifecycle Management (CLM) systems, and taught workshops on how to re-design and simplify contracts documents. Prior to starting her own company Milva worked at The Boeing Company over 12 years in both contracts and finance disciplines on various multi-million-dollar plus government and commercial programs. Follow her on LinkedIn: https://www.linkedin.com/in/milva-finnegan-89065376/
To read her dissertation go online to University of Vaasa publications at: https://osuva.uwasa.fi/handle/10024/12480