In a legal setting, Design Thinking can be used by the lawyer to match his or her client’s needs to what is legally and practically achievable in order to create a successful business or problem-solving strategy.
Design Thinking is a process that can unlock creative, client based solutions. It is used in technology, product design, manufacturing, government and social enterprises. It employs the designer’s sensibility and methods to match people’s needs with what is feasible so as to develop a product or service that creates customer value and market opportunity (Tim Brown, Design Thinking, Harvard Business Review, June 2008). In a legal setting, it can be used by the lawyer to match their client’s needs to what is legally and practically achievable in order to create a successful business or problem solving strategy. There are a few different models. The one shown below has been developed by the Stanford Design School.
The early development of the model took place over time and was clarified in 1980 when Bryan Lawson, an architectural professor, studied how designers problem solve compared to how scientists problem solve (How Designers Think: The Design Process Demystified, London: Architectural, 1980). In an exercise where a structure was to be created with colored blocks, the scientists used analytical thinking to quickly break down the variables and different combinations of the blocks; they analyzed the information and possible variables. They began an engineering investigation to come up with way to effectively build the block structure. The scientists used a problem focused approach by evaluating specific possibilities and moved forward with structure-building based on their detailed analysis.
By contrast, the architects selected their blocks in order to achieve the best end use design and aesthetics. The architects looked at the most favorable usage and colored perimeter. If one perimeter design proved not to be an appealing combination, then the next most favorably colored block combination would be substituted and so on until the best visual and design solution was discovered. In other words, the architects looked at the aesthetics, the final product and were solution-focused.
Some suggest that Lawson’s studies show that scientists solve by analysis (details first, breaking down alternatives and variables—then moving a final solution) and designers solve by synthesis, which starts the process by looking at the end use (aesthetics and design, user needs, final result) then to the particular details of building and engineering. In the end, we all know the best design uses both! For lawyers, we can learn to use both; problem solve and create opportunity with analysis and synthesis. Many lawyers already use these multiple problem solving ideas but we can often focus too much on the facts, law and details. We can surely learn from some of the most innovative thinkers in design and business.
New Ideas for Legal Advice and Problem Solving
Design Thinking is all about asking: What problem does our client have? What are we trying to solve and how can we help the client achieve an improved situation? This competency, Legal Design Lawyering as one group has coined it (Veronique Fraser & Jean-Francois Roberge, Legal Design Lawyering: Rebooting Legal Business Model with Design Thinking, Pepperdine Dispute Resolution Law Journal, December 2015), is said to enable a lawyer to engage in a problem solving shift through a constant reevaluation — a process of asking — Why am I doing what I am doing in the way I am doing it? Does it solve the client’s problem? This process invokes a consistent questioning of whether the action is improving the client’s situation. This happens at every stage of the lawyer-client process. So, how does this work in everyday practice?
Before we get to specifics, it’s important to recognize that we lawyers have been trained as analytical thinkers. The Socratic Method and ‘thinking like a lawyer’ are analytical processes that exemplify the scientific method taught in engineering and science schools. We identify issues, break down the facts and the law, analyze, and then come up with conclusions based upon legal parameters (we know this analytical formula – IRAC). This skill is essential to our profession. Yet, we can go further. Great analysis and creative solutions are most effective when you understand your clients’ needs situation fully.
For example, take the classic client counseling and interviewing setting. We strive to get a full understanding of the facts by carefully asking question like: What happened? When? What else occurred? These interview ideas are important and help us to get a sense of the situation and the legal issues. In addition, taking on a “client centered” approach helps us glean added information. Using this client oriented method in interviewing where client views and needs are the primary focus, helps us to open up better dialogue and resolution generation (Client Centered Counseling; Reappraisal and Refinement, 32 Ariz L. Rev 501 (1990). The solution oriented (design thinking) lawyer then goes a bit further working with the client and others to define the problem or opportunity, brain storm, create, and innovate options (ideate) using the design (client centered, creative) process.
After understanding the basic facts, effective lawyers ask questions like- What is the client trying to achieve? How can we not only solve the problem but create an improved situation for the client? For example, in business, how can the lawyer help the client with their business processes, profits and help improve employee effectiveness. This approach helps the lawyer and the client create, innovate and brainstorm potential solutions, some of which may not result in a legal solution, but perhaps a practical non-legal solution or opportunity. This creative process allows the attorney and the client to go beyond basic legal analysis towards solution-oriented thinking.
We lawyers excel at practical and legal problem solving; yet, we often limit ourselves to legal actions and solutions when more creative and innovative results can be developed. Can we move past legal analysis to creative client centered problem solving and opportunity creation? Of course we can. This is a step many of us already do; but, we can learn to do it better. This will not happen by happenstance though. We are not all trained to do this. We must be intentional in how we approach our clients, determine the best way to help them solve, create and innovate while blending analytical thinking with solution oriented synthesis.
As lawyers, many of us think like legal engineers, focusing on facts, law, issues and conclusions. We can also think like legal designers and architects, focusing on innovative client centered solutions that are expansive, visionary and innovative. For more information on Design Thinking, check out the resources below:
Applying Design Thinking to Law
Design Thinking and the Future of Law, Nicky Leijtens
Legal Design Lab at Stanford Law School
March 2017 by Robert Cullen