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Thank u, next | Design Thinking – When the craze ends

August 10, 2019

 

Everyone loves a fad. Fads make leaders look effective during times of crises; they’re platforms for younger generations to advance their careers; and a convenient PR response to market uncertainly. Fads are a strategic sleight of hand. They trade on novelty. Despite being overhyped, fads usually originate from credible ideas, the impacts of which linger long after the mania has fizzled out. 

 

In the age of artificial intelligence, we’re seeing this play out with the rise of legal technology and the maturity of legal services market. Design-thinking is a way of signalling to the market that lawyers are prepared for the fourth industrial revolution. Nothing to see here folks. We’ve got it under control.  Lawyers will not be replaced by technology.  Cue social media photos of smiling teams making the world a better place, one Post-It note at a time because #innovation.

 

You know the drill. It’s the fad effect. But when the façade dissolves, and we’re left grappling with the impacts of technological upheaval, what will be design-thinking’s legacy in the legal industry?

 

As one of only a handful of legal practitioners working at the intersection of law and design, I’ve be lucky enough to observe just how design-thinking is leaving its mark on the profession. While lawyers acknowledge the potential benefits of human centred design, it remains deeply sceptical and has been putting its own spin on the fabled methodology. What happens when the hype ends is anybody’s guess - but I’m willing to try. 

 

Here are my 5 of predictions:

 

1. We’ll be able to spot the pretenders 

Faced with the prospect of ‘software eating the world’, lawyers everywhere jumped quickly onto the legal innovation bandwagon hosting hackathons and design-thinking workshops. But as digital transformation entered the lawyers’ lexicon, many legal teams began actively building innovation muscle. Others, continued to engage in highly publicised but cosmetic activities now known as “Innovation Theatre”.

 

The difficulty with the digital age is that transparency in marketing goes both ways. After 3 or 4 years of posting social media updates about design-thinking workshops clients will inevitably ask the question: what have you created? If there are no pilots, betas, launches, releases, partnerships or in production posts this question will be entirely rhetorical. 

 

But the impact is more significant than a marketing stumble. Organisations who have invested successfully in innovation strategies are beginning to establish a distinct competitive advantage and new sources of revenue.  The Australian legal market has already begun experiencing this recalibration with premium law firms losing market share to alternate legal services providers with more elastic structures. 

 

Clients are also placing greater pressure on legal providers to verify the efficiency of their systems to ensure they aren’t just planning to bill into an abyss.

 

Prediction: In the next 18 months, the pretenders and innovators will become apparent. 

 

2. Lawyers will demand greater competency in design-thinking

The underlying philosophy of design-thinking places great value on psychological safety which is developed through mantras such as ‘embrace ambiguity’ and ‘learn from failure’.  Speak to someone after a design-thinking workshop and you’ll see them positively beaming with confidence. But the inquiring minds of lawyers soon realise that a 1-day workshop in design-thinking doesn’t prepare them for running an innovation project.  

 

For those delving deeper, we’re seeing confidence diminish sharply as lawyers realise just how complex design-thinking can be. The interdisciplinary approach means lawyers are being exposed to everything from scientific methodologies to colour theory. The blending 

 

of creative and analytical thinking, which is the essence of design-thinking, is tremendously difficult if legal teams aren’t supported properly. Clients are again driving the demand for collaborative problem solving on end-to-end solutions from internal client to external lawyers. But this ‘warts and all’ approach is somewhat risky for lawyers based in organisations only engaging in innovation-theatre. Legal service design is complex and requires the right environment for innovative ideas to move from workshop to workflow. Collaboration is a litmus test for clients to discern whether the firm has real innovation capacity. 

 

With immense pressure on lawyers to deliver successful innovation projects, building competence is critical.  Lawyers need appropriate tools and training to take design-thinking from fad to foundational tool. But they also need the right culture that permits creation to support the application of those skills. The legal profession is only beginning to understand the importance of innovative culture as fundamental to the development of successful innovation projects. There is very good reason companies like Google, Amazon and IDEO focus on culture; they recognise its pivotal role in successful innovation. Concepts like work rituals, play culture and pet projects are not part of the law firm model. But they should be. 

 

Prediction: In the next 12 months, lawyers will demand more specific resources from their organisations to assist with collaborative problem solving as well as culture change. 

 

3. We’ll recognise legal innovation as a complex role and make someone responsible for it. 

The decentralised approach to innovation favoured by the legal profession is misconceived. While lawyers might need an understanding of design-thinking, that doesn’t mean every lawyer should be responsible for innovation. Imagine how well it would work if we made everyone responsible for payroll? Or strategy? Or marketing? 

 

Secondly, the definition of innovation in the legal services industry is a misnomer encompassing any activity of improving the delivery of legal services, regardless of whether technology is used. Most other industries simply call this research and development (R&D) with ‘innovation’ reserved for solutions which are truly disruptive. In these organisations, R&D is usually a core function of the business which brings us to the third issue. 

 

R&D departments typically develop new products and services, shape the business strategy, drive efficiency and continuously develops and the protects the organisation’s competitive advantage. There are devoted resources responsible for this task.

 

By contrast, the dominant approach in law firms is to use lawyers to drive innovation projects because of their legal expertise. But most lawyer led projects tend to stall because client work will always be prioritised (as it should be). Asking lawyers to step off the billing treadmill is counterproductive. Asking lawyers to be responsible for innovation while still on the treadmill is potentially destructive; the reality for many lawyers is that innovation represents an unwelcome increase in unbillable time for which there is no direct tangible benefit to them. There’s simply no time to 

 

experiment, to learn from failure or to embrace ambiguity. In this context innovation isn’t considered an investment, it’s an opportunity cost which makes success more critical, hampers the establishment of psychological safety and undermines the success of the project team. There is no space to be creative. 

 

It is common in industries that rely on professional knowledge such as biotechnology, medicine and pharmacy to employ professional scientists, doctors and pharmacists in product development roles. Yet law firms have been slow to hire lawyers specifically for legal innovation projects. Law firms will also experiment with other ways of taking lawyers off the billing treadmill such as internal secondment and establishing short term project teams. 

 

Prediction: Legal organisations will invest in centralised R&D teams comprised of specialist interdisciplinary teams. 

 

4. We’ll realise good business design is the basis of legal innovation 

Legal technology is the star of legal innovation but many organisations are still struggling to deliver projects. Capacity issues aside, organisations are failing to consider how technology will change their practice and are simply digitising the manual process. There are two insights that are beginning to crystallise:

 

  1. Technology won’t fix a system – but it sure can scale one. Most lawyers assume digital transformation is just automating existing business processes. But if the underlying system isn’t reviewed carefully, tiny errors are scaled to such magnitude the integrity of the organisation could be put at stake. The Australian Government experienced this in the widely publicised Centrelink Robodebt crises in which the Government was forced to wipe, reduce or write off 70,000 Robodebts generated by its automated system. This insight has seen a sharp increase in demand for legal process mapping and workflow analysis. 

  2. Simply automating existing systems fails to harness the opportunity to develop new and different business models. Business design should be the first step towards developing a solution as legal technology has the potential to allow lawyers to access new markets and enter into new billing arrangements. These opportunities mean that internal metrics such as utilisation and revenue targets need to be recalibrated to recognise automated contributions. It also means that isolated innovation projects are beginning to influence broader decision making around business design as projects spin off into separate entities or service lines. 

 

Prediction: Over the next 2 years, legal organisations will move from being tech oriented to become more focused on good business design and how to use legal technology to create new business models. 

 

5. Law will reshape design-thinking for mass market problems 

Law is an industry of analytical minds valued for their ability to process huge amounts of information, gaze into the future and predict all manner of risk. They’re evidence oriented, details focused, voracious learners who are happy to ask the really tough questions.  

 

 

This convergent superpower is a significant advantage when developing innovation projects. In the face of innovation evangelism, it is often lawyers who identify the assumptions that need testing to validate whether an idea should proceed; a core part of experimentation. It also means that lawyers are well suited to the task of adapting the design-thinking methodology for systemic problems in the mass market. 

 

Design-thinking originates in product design, focusing on identifying a need for a niche market. This means solutions are rarely marketable to the masses. While legal services can be segmented into different categories, many remain mass market services. This is particularly so for Government lawyers charged with policy development. 

 

What the design-thinking philosophy teaches us is that there is opportunity in uncertainty. Lawyers possess the innate ability to identify patterns or trends in voluminous amounts of unstructured information. With the adaptation of design-thinking tools to ensure empathetic practices are prioritised, lawyers are well suited to the task of developing the methodology for human centred law and policy design.  

 

Prediction: Lawyers will actively adapt the design-thinking methodology for mass markets. 

 

About the Author

Sara Rayment is the founder of Inkling Legal Design, a consultancy with a global footprint that reimagines legal services through design, law and emerging technology. Having worked as a lawyer for 10 years in top tier firms, Sara blends legal expertise with human centred design principles to deliver innovative solutions. Her clients include government agencies, regulators, law firms and corporate counsel.

 

She has served twice as delegate to the United Nations Commission on International Trade Law to advise on the design of an online cross-border dispute process to provide access to justice for consumers. 

 

She is also an alumni of Stanford University’s Hasso Plattner Institute of Design Teaching and Learning Studio where she developed strategies for helping lawyers adopt design-thinking.  

 

You can find out more about Inkling at www.inkling.how or contact Sara directly on Sara.Rayment@inkling.how

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