Legal Solution by Design — a brief assessment of the role of design thinking in law schools
This week, the Duke Center on Law & Tech hosts “Big Ideas: Designing Creative Legal Solutions for a Better Tomorrow.” As we’ve done many times in recent years, we’re getting ready to apply the tools of design thinking to deeply entrenched problems in order to make the law better.
At this particular session, we’ll bring a broad range of thinkers together to re-imagine the measurement of project progress and attorney success beyond the billable hour. We’ll channel the perspectives of many stakeholders. We’ll wrestle with complex tensions. We’ll get messy and adventurous and (I hope) even say some dumb things along the way as we push our creativity beyond normal limits. And we’ll prototype until we grow excited about new ways to do things. I don’t know the outcome, but I do know this won’t be your traditional meeting of lawyers. Design thinking can be refreshing!
Does this kind of design thinking experience have a place in law schools?
Ask any curriculum committee or present-day law student, and you’ll hear that today’s law school experience is already crowded. So, should we add something more? Doctrinal foundations like torts remain — as they should — while schools face increasing needs to teach about emerging areas and bolster practice skills, such that courses can proliferate and demands on students can intensify. As such, any “addition” to the law school experience ought to be vetted carefully. Like good lawyers, we should conduct our due diligence, and I’m looking forward to hearing the experiences of others as inevitably more participants from the legal world test out design thinking processes in the years to come.
For my part, I’m growing increasingly committed to design thinking as a process, as an attitude, and as a key component of modern legal education. So, I offer some brief thoughts on (1) reasons design thinking is needed in law schools and (2) some common lawyer strengths and common lawyer challenges that may grow apparent as design thinking becomes more a part of the law school experience.
(1) Reasons design thinking is needed in law schools
Fuel for change- At its core, design thinking asks not what something is but what it can be and should be. The very best of our law school curricula do this already, of course, but design thinking privileges the creative processes and empowers acts of change-making in ways that are more intentional and overt. The law, like every powerful institution, needs engines of renewal and disruption, and design thinking fuels these engines, giving students full license to make tomorrow’s law better than today’s.
Design thinking helps us to change the law for the better…
…by asking participants to take on a beginner’s mindset
…by looking beyond the borders of the “law” as currently defined
…by stripping away the fear of making mistakes
…by teaching creativity and prototyping as core skillsets
Human-centeredness- It’s my job to think about the intersections of technology and law, and I believe in the power of technology to help us achieve a future with democratized access to legal resources, etc. But, as I’ve said elsewhere, I don’t believe this future is inevitable, and we must always remain on guard against technological fetishism. Where the excitement of technological potential might lead us to focus on technology itself, design thinking helps us to refocus around human needs. It leads us to ask not what technology can do but what it can do to help further human flourishing. In solving any problem, design thinking helps us to test the prototype of any potential technological solution in the fires of real human needs and to iterate until it meets those needs. This human-centeredness is inherent to the process.
Design thinking helps us to remain human-centered…
…by starting with real human needs
…by focusing on the problem to be solved
…by making a broad range of stakeholders integral to the process
…by iterating until the solution works for the users
Diverse voices/Interdisciplinarity - As a process, design thinking is almost inescapably interdisciplinary; at the very least, it cannot work without diverse voices. It asks us to uproot from our own habitual fields and to grab fresh ideas from unexpected pastures. It asks us to keep sight of the whole complex problem and to avoid oversimplification based on narrow perspectives. And it asks us to work together around open tables to imagine divergent possibilities.
Students involved in law school clinics or early-stage attorneys in practice often report that they are surprised by “how little law” their daily practice involves. They had imagined themselves doing what law school often teaches: researching legal responses to clearly articulated legal questions. Instead, real clients come to them with real problems for which the law is almost invariably only part of the solution. While this reality may ultimately be reassuring for most (Yeah, thank goodness the law is not responsible to bring forward every solution!), initially it can prove disorienting. What was all that legal education for? I’m not trained to work with technologists and accountants and social workers! Heck, I’m not even trained to work in teams!
In this way, I would argue law school often misses the mark. Modern problems and complex client issues demand multiple sets of expertise, with approaches from many angles. Inclusive solutions involve inputs not only from lawyers but also from a broad range of other professionals and community stakeholders. And success requires effective communication, process management, and teamwork from all involved. Perhaps design thinking can help.
Design thinking helps us to be interdisciplinary and include diverse voices…
…by asking us to uproot from our own fields
…by encouraging open-table approaches
…by believing in the magic that happens when seemingly incongruent ideas collide
…by retaining complexities and tensions and eschewing narrow approaches
…by demanding we include the voices of many stakeholders
(2) Ok, but are lawyers and law students really able to be successful with this?
Lawyer strengths — When one mentions design thinking, it’s doubtful that images of lawyers come first to mind. Yet, in many ways, design thinking might build upon typical lawyerly strengths. For example, good lawyers are solutions-oriented, even if we don’t always practice the broadest range of skills to achieve these solutions. They value processes and the collection of data, etc. Lawyers and law students tend to be imminently curious and intellectually energetic, desiring to engage with others to learn, know, and do more. Because American legal education happens at the graduate level, groups of lawyers are — at least to some degree — naturally interdisciplinary, as all have arrived at the law from various undergraduate academic programs. And ideally most law students have chosen law school because they care about people and finding solutions to their problems.
Lawyer challenges — Of course, there are also several ways in which design thinking might feel like a challenge to lawyers. For example, lawyers tend to be risk averse and aim for certainty. This could 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. 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. Logic may be valued over creativity. 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 many lawyers and law students have learned to work in relative isolation; collaboration and teamwork can feel discomfiting.
If you buy these general strengths and weaknesses, you might conclude that — while stepping into design thinking may not feel immediately comfortable or natural for every lawyer — lawyers generally have much to offer to the design thinking process. More importantly, design thinking may have much to offer to us. As one student wrote who took the Designing Creative Legal Solutions course that I co-taught last year with the wonderful Rochael Soper Adranly of IDEO:
“Too much of law school centers around case law and legal theory. In design thinking, students are encouraged to problem solve and incorporate lived experiences. It’s practical and freeing! It also made me feel closer to the Durham community by interacting with and learning from real stakeholders.”
That student felt invigorated by design thinking. I tend to feel the same way. Perhaps there’s more room for that in law schools.