Law Technology Today From the ABA Legal Technology Resource Center
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Design thinking has taken root in the legal profession, and for good reason. From placing a premium on empathy and creative problem-solving to relying on interdisciplinary approaches to the law, legal design positions lawyers to find new—and better—ways to serve their clients. Nonetheless, the explosion of growth in the legal technology sector raises a burning question: How can young lawyers best prepare to navigate a constantly changing legal landscape? Without question, this preparation starts in American law schools.
To provide the perspective of those who are in the trenches of transforming legal education, we conducted written interviews with three leaders in the field of design thinking in law schools: Professor Cat Moon of Vanderbilt Law, Professor Kevin Lee of Campbell Law, and Professor Jeff Ward of Duke Law.
Professor Moon is currently teaching a human-centered design (HCD) course at Vanderbilt Law, Legal Problem Solving, focused on three core items for students: using HCD mindsets and methods to 1) think intentionally about their legal careers, 2) supplement their “thinking like a lawyer” toolbox, and 3) create solutions for challenges faced by local legal organizations.
Professor Lee is teaching a Design class at Campbell Law along with Tsai Li Lui, a Director of the College of Design at North Carolina State University, on the process of empathizing, visualizing, prototyping, and iterating solutions. Professor Lee also teaches a Computational Law class, surveying how Big Data and complexity science are being used to map the social system of law, as well as a course on Law, Ethics, and Technology on how to understand the lived experience of moral meaning in a technological age.
Duke Law’s Designing Creative Legal Solutions course, co-developed in 2018 by Professor Ward in partnership with Rochael Soper Adranly of IDEO, helps law students consider “how the law of tomorrow can be between than the law of today.” This year, the course is being taught by Casandra Laskowski (part of the Duke Law By Design team) and will explore the issue of human trafficking from various stakeholder perspectives using HCD.
Drawing from the wealth of experience of these professors, we’ll cover topics on what design thinking is, what challenges are present in legal education and the legal profession, and how design thinking can be used to tackle those challenges. For each topic, we’ll provide insights from all three professors as unvarnished as possible.
What is design thinking, and why is it important to legal innovation and legal education?
Professor Moon:
Professor Moon’s work encompasses human-centered design (HCD), which is broader and deeper than design thinking. She derives her definition of HCD from the Luma Institute: an activities-based framework for creative problem-solving that focuses first and foremost on people. Professor Moon uses this definition “because it acknowledges that many tools can be used in this way, not simply the design thinking process.”
She goes on to explain that “because of the ubiquity of IDEO and the d.school’s work in design thinking, this phrase often means the multi-phase process that generally encompasses empathize, define, ideate, prototype, test.” And while some describe design thinking in as few as three phases: inspiration, ideation, implementation, it has also been defined by some as having seven phases: understand, define, research, ideate, prototype, implement, iterate.
“In its most useful sense,” Professor Moon notes that, “legal design is HCD applied to legal problems, including legal services delivery challenges as well as access issues, and really any challenge that we face anywhere along the legal spectrum.”
Professor Lee:
Professor Lee describes design thinking as “an iterative practice that originated in the software industry for development of products,” and which “has become very popular in many fields where resources are limited, and risk is relatively high.” The concept, he explains, is to make many small experiments with limited risk “to develop a more complex and tailored application.” But while a design sprint in the software industry can be over rather quickly, “HCD can take a longer perspective, with more empirical data and more thoughtfulness about the impact on individual human lives and society as a whole.”
At its best, Professor Lee says, “design thinking can play a significant role in helping to think through important issues while engendering social conscience.” Since HCD is rooted in what is genuinely good for the end-user and because it takes a long-term perspective, it can contribute to understanding how to improve society for all. He goes on to state that it opens students’ minds to appreciating “the weight and meaning of the law as it actually impacts human beings,” a practice that is vital in our rapidly changing technological society.
Professor Ward:
Professor Ward characterizes design thinking for law as a process of experiencing knowledge and exploring the human mind’s “playground of ideas.” According to Professor Ward, design thinking “helps us to change the law for the better” in four primary ways: 1) by asking participants to take on a beginner’s mindset, 2) by looking beyond the borders of the “law” as it is traditionally defined, 3) by stripping away the often paralyzing fear of making mistakes, and 4) and through teaching creativity and prototyping as core skill sets. Defining legal work as an explorative process departs from many traditional models of legal problem-solving, which can tend to be rigid, myopically focused on precedent, and driven by antagonism and fear.
What unique challenges do law students and young lawyers face in today’s legal climate?
Professor Moon:
First and foremost, Professor Moon raises the heavy debt burden that law students carry into practice as an ever-present challenge—one that largely dictates the work they must do, regardless of their personal passions. This, she says, “contributes to the fact that 80% or more of people with a legal problem never get help from a lawyer.” The expense of law school for many students then forecloses small practice, public interest, and government pathways, which negatively impacts both students and society.
Further, Professor Moon highlights two perennial and pervasive problems: a lack of mental health awareness, and a dearth of diverse representations in the legal field at large. “The legal profession has a mental wellness problem, and it starts in law school,” she says. “It’s a structural challenge and it will continue to diminish our profession until we do the hard work required to support the thriving of the people who do legal work.”
Professor Moon also cites the glaring lack of opportunity for women and people of color, as “half of law school classes and new associate classes in law firms are comprised of women, yet fewer than twenty percent make it to equity partnership level.” However, “the opportunities for people of color are even fewer,” she notes. “Too many students come to law school, go deeply into debt, and enter a profession that data show will not welcome or support them.” Along with the mental wellness issue, “we must face this meaningfully and commit to the structural change required to fix it.”
Professor Lee:
Professor Lee shares Professor Moon’s concerns, but explains that the major challenges law students and young lawyers face today are particularized forms of challenges that the entire population faces.
Professor Lee cautions that as the profession changes, lawyers face particular challenges: substantial law school debt, stagnant median starting salaries, and a shift in the skill-sets that employers value. “There is a disconnect,” he says, “between legal education, the bar exam, and the profession.” While each has its own values, we’re “in an age where students are amassing massive debt to go to law school, [and] the educational program needs more focus on the values that a licensed lawyer needs to represent clients and to be that public citizen which has been the historic role of the legal professional.”
To illustrate the particularized challenges the legal profession faces, Professor Lee points to the “the continued hegemony of white privilege.” And more specifically, he notes that “what we see is mostly-white-males giving privilege to mostly-white-males.” He goes on to state that as an Asian-American, he is struck by how casually we have collectively accepted the lack of Asian faces in the upper echelons of the profession, even as the general population becomes increasingly Asian. “It something we have just come to accept as normal,” he states.
Moreover, he says that students graduate and enter this perpetuated hierarchy with few skills to help them navigate it, but that “the lack of moral understanding and self-awareness are worse.” Pointing to the rising rates of substance use and suicide among American lawyers, he advocates for teaching students to think deeply about the moral meaning of the purpose of their own lives and their work as lawyers. Understanding their future role as lawyers in society and their ability to address these issues with HCD further equips law students to handle the transformations occurring within the legal profession in this time of enormous change.
Professor Ward:
Similarly, Professor Ward acknowledges the lack of diversity on every level of the legal profession and the danger it poses. “As a process, design thinking is almost inescapably interdisciplinary,” he says. “At the very least,” Professor Ward notes that design thinking “cannot work without diverse voices,” because “it asks us to uproot from our own habitual fields and to grab fresh ideas from unexpected pastures,” and because, “it asks us to work together around open tables to imagine divergent possibilities.” As such, the reproduction of a predominantly white male hierarchy within the profession precludes these critical opportunities.
Ward explains that there are several ways in which design thinking might feel like a challenge to lawyers. “For example,” he says, “lawyers tend to be risk-averse and aim for certainty,” which could then “interfere at stages of the design thinking process that ask participants to be bold, to take chances, to reserve judgment, and even to make mistakes.” Furthermore, “a lawyer’s careful curation of professional expertise could feel in opposition to the very important beginner’s mindset that drives much of the creativity of the design thinking process.” Instead of focusing on the future, lawyers are often “anchored in precedent.”
In other words, they may uphold logic at the expense of creativity. Professor Ward cautions that “years of learning from appellate cases with faceless clients stripped of the full facts and a common mandate to focus on intellectual questions of law may have dulled the powers of human observation (and perhaps even human empathy).” And in addition to the traditional legal training model, “many lawyers and law students have learned to work in relative isolation,” making collaboration and teamwork often discomfiting.
How can education in legal design help lawyers navigate these challenges?
Despite these persistent problems, all is not lost. The professors each echoed that a shift in the legal academy to human-centered design can redirect lawyers, promoting a healthy focus on the humanity of client problems and legal issues.
Professor Moon:
“HCD is important for legal innovation and legal education because it offers additional mindsets and tools for problem-solving that are particularly effective for the wicked problems we face,” Professor Moon explains. “Not only are we problem-solvers for a living, we also face a number of enormous challenges in the legal profession.” To solve these problems, “we’re going to have to do some things differently. We’re going to have to innovate and adopt the mindsets of innovation: curiosity, experimentation, radical collaboration, iteration. Constant innovation is the new normal in this Fourth Industrial Revolution, and the legal profession is no exception to this.”
Professor Lee:
“Law students need technical education in law, in data science and social theory,” Professor Lee says, “but even more, they need some jurisprudence and education in the humanities.” He concludes that “it’s only with that basic understanding of these fields that they can achieve some apprehension of the moral significance of their own existence, even as the conditions for understanding their existence are changing.”
Professor Ward:
Professor Ward notes that “human-centered design thinking can help bring inclusive innovation to law.” He elaborates that “unlike more traditional methodologies, it privileges creative processes and empowers acts of change-making, focusing not on what the law is but rather on what it should be.” The law, he says, like every powerful institution, “needs engines of renewal and disruption,” and HCD fuels these engines, giving students and practitioners “full license to make tomorrow’s law better than today’s.”
Designing A Better Way
Though legal educators, law students, and lawyers alike face steep challenges, from debt to diversity, mental illness, and an often sluggish growth curve in the profession, HCD carves a path forward for innovators to navigate treacherous terrain. Our society needs thoughtful lawyers more now than ever, and a creative, human-centered approach to problem-solving may just be the lifeblood of a new generation of lawyers.
