Legal Design from Finland: a Legal Visual Guide designed by Stefania Passera
Do you usually read the user manual when you purchased a new product? According to an article by the online magazine Engadget, 95% of the returned products still work despite what customers may say or think. The complexity of gadgets is to blame here, the article claims. Now, what if you’re a civil servant and you’re dealing with a complex process to purchase services for the municipality using taxpayer’s money? What are you going to do if the documents you need to rely on to deal with the complex purchase process are also complex and hard to understand?
This is a question researchers from SimLab at Aalto University asked themselves. Kuntaliitto — the Association of Finnish Local and Regional Authorities — has all Finnish municipalities (the total of 311 as of 2017) as its members that regularly buy expert services in various forms. In Finland, where the public sector constitutes a large part of the economy, this happens on daily basis. Published by the Ministry of Finance of Finland, the General Terms of Public Procurement in Service Contracts (JYSE Services) constitute the general rules buyers and providers of these expert services need to follow in a public procurement transaction. The terms include, among other things, terms of payment, price adjustment, dealing with damages, insurance, intellectual property rights, cancellation or termination of contract, dispute and applicable laws, and confidentiality.
Buying expert services is complicated and bears uncertainty. Unlike products, (like furniture) or operational services (like cleaning or logistics), one cannot predict what exactly the outcome will be. Also, often the buyer is not the best expert in what they are about to buy. Now add public tender competition and the lengthy period to which both parties commit to. There can be conflicts, or unexpected changes because the topics and challenges the public servants engage in are situated in the complex social world.
Published by the Ministry of Finance and used by 311 municipalities of Finland, JYSE Services is the official Terms and Conditions for buying services in the public sector, which each public servant putting out a tender competition is supposed to be fully aware of. The terms include, among other things, terms of payment, price adjustment, dealing with damages, insurance, intellectual property rights, cancellation or termination of contract, dispute and applicable laws, and confidentiality.
Through the interviews and observations of 22 experts and civil servants, Aalto University researchers figured that the meaning and influence of the document were often not fully understood. Misinterpretation has been a cause of ineffective procurement due to mismatched expectations between suppliers and public procurers. This resulted in defective service provision, claims, and budgetary loss.
Many misunderstanding occurred even when the public servants fully read the document. It was not necessarily because of the complexity of the document — JYSE itself wasn’t a particularly difficult document. Rather, the problem was a lack of understanding of the logic and the goals of the terms, and how to use them to ensure better procurement. Many public servants were working based on their memories and common sense, which may sometimes be at odds with the intent and content of JYSE. For example, civil servants often considered JYSE as a ready-to-use contract although it only forms a part of it as a general terms document. This means that they still need to write the actual contract describing what is being purchased at which price. Drafting contracts would also allow them to customise and override some JYSE terms to create more suitable exchanges and relationships with suppliers given the situation at hand. But this opportunity is rarely being taken, as JYSE is not understood and used in these strategic terms.
Stefania Passera, a designer and doctoral researcher was asked to join the Pro2Act project and work with the lawyers to solve this problem. Not only did Passera produce an easy-to-understand visual guide, but tested the efficacy of finalised visual guideline and identified recurrent patterns that could be utilised for similar legal documents.
Passera slowly began to collaborate with the lawyers of Kuntaliitto, taking one clause at a time and re-imagining it visually through numerous rounds of iterations. In the beginning, the project was more of an experiment to see if the visualisation could improve the readability of JYSE. Over time, both the lawyers and Passera realised the whole JYSE could be visualised, and it could be useful for the public servants, as well as service providers. The result was a full-fledged JYSE Visual Guide that accompanies the original JYSE 2009 document. Compare the intellectual property clause in JYSE 2009 (Figure 3) and the visualised one (Figure 4). Passera’s visualisation is designed from the reader’s perspectives so that one can see what s/he needs to do, what the other party needs to do, and what should be done together. Another great example is the clause that shows what should be done when a change of price occurs in the form of a flowchart (Figure 5 — more examples can be found on Passera’s website).
Passera’s research paper clearly shows the efficacy of Visual Guide. Together with SimLab researchers and Kuntaliitto lawyers, she developed a series of questions to test whether the JYSE clauses could be understood more accurately and quickly when using the Visual Guide. When tested with 76 public servants, the results showed 17.2% improved mean accuracy (from 3.59 to 4.21 points) and 17.3% reduced mean answering time (990 to 818 seconds). Similar results were replicated in another study by Passera and her colleagues, in which they tested how international managers understood a B2B contract on purchasing industrial equipment when presented with or without explanatory diagrams.
What is more, the test participants reported that Visual Guide felt more useful, usable and pleasant to use than the textual document. The results, all in all, translate into higher civil servant engagement with procurement documents, better understanding, and less conflicts caused by misinterpretation. Additionally, more participation of small- and medium-sized enterprises in public tender competition can be expected. SME’s often renounce participating in tenders because of the burden of complexity in the process, the extra resources required for participation and the compliance imposed on them. This is in line with the strategies of Finnish government and European Union as small companies create 85% of new jobs and therefore contribute to more stable and prosperous economy in the long run.
The JYSE Visual Guide was a clear addition for readable, human-friendly legal documents and more effective procurements. Then, what are the nitty-gritty details in creating these visual guides? The next post will cover this area with an interview with Stefania Passera.