Proactive law and trends in contract design
This is a summary of an interview between Hannele Korhonen from Lawyers Design School and Helena Haapio, a pioneer in legal design and proactive law practitioner. We touch on the history of legal design and contract design trends happening now and into the future.
This presentation focuses on how lawyers can
- design content
- present information in their contracts
- and resources lawyers can access to participate and learn more about contract design
Helena is on a mission to humanize law and change the way lawyers approach contracting so it’s sustainable, understandable and designed to reduce (rather than anticipate) litigation. And first and foremost – allows clients to achieve their goals.
You can watch the video for Helena’s presentation slides on contract design trends and get a more comprehensive understanding. Helena kindly shared a detailed list of contract design resources for lawyers interested in contract design. You will find them at the end of the summary.
Who is Helena Haapio
Hannele: Most of us here will already know you but I’m intrigued about your bio because you describe yourself as a pioneer of proactive legal thinking and a contract design practitioner by day, and an author and editor by night. Tell us more.
Helena: I wonder if everyone knows what proactive law or proactive legal thinking is about. It is something I have been practicing for over 20 years.
It’s something that’s really close to my heart and legal design, contract design, for me is a way to bring it to practice.
The Pocket Lawyer
Helena: I’ve bought my friend the Pocket Lawyer to explain the difference between proactive law and traditional law.
Many business clients believe lawyers are all about litigation and winning in court. That’s the Pocket Lawyer and the Pocket Lawyer gets all the media attention.
He’s not a proactive preventive lawyer. He speaks perfect English.
He says: “This is outrageous. My client is innocent. And then he says, this is what he’s famous for: “I see you in court.”
So he’s here to show you that not all lawyers are of the same kind.
There are lawyers who litigate, and then there are lawyers who want to prevent the need to litigate and help clients, businesses, and people succeed and reach their goals, so they do not need to litigate.
And that’s proactive preventive law in a nutshell.
My background. I’m a practitioner by day, yes. Lexpert is my firm and I used to work as an in-house counsel. These days I work. I share my time between Lexpert and then two universities, the University of Vaasa, and the University of Lapland. I’m a Professor of Practice at the University of Lapland.
Legal design – how did you get into it?
Helena: I was fortunate to be there when it all started and I got to know Colette Brunschwig and her doctoral dissertation early. Back then we didn’t call it legal design. In the beginning, I was doing real-time visualizations.
We were doing contract executive training and contractual risk management training. Annika Varjonen from Visual Impact made graphic notes on the spot during the workshops.
And the participants loved the images. I heard it over and over and learned that there was magic in those images and visualizations which made me want to look into visualization more closely.
I got so intrigued that I became a researcher and started writing and found people who shared the same kind of thinking.
You see I noticed when I was doing contracts as in-house counsel that clients would call and ask questions about their contracts – even though the answers were in the contracts – but they didn’t realise it – because they didn’t read the contracts.
The power of images and visualization
Helena: Once I saw the power of images and visualizations and the different ways to structure contracts and organize materials, I understood that there is a better way.
And that’s how I found out about information design and information designers.
Stefania Passera coined the concept of Legal Design Jams. And we did these jams with Stefania, with Rob Waller, and with Margaret Hagan. We did the first ones in 2013.
How do you define legal design
Helena: Since then, legal design has become a concept. I’m amazed at how broadly it is used these days. But if you would ask me about the definition, I would not have one. It is so many things.
We recently co-authored and co-edited a book for Edward Elgar on legal design, and we didn’t even try to find one definition. Every author has their own and I think that’s a good thing.
So for me, it’s about bringing proactive legal thinking and proactive contracting into practice using design, using ways that make life easier for people, the people who are impacted by those contracts.
Contract design trends: Sustainable contracting
Helena: We will focus on two aspects:
- Designing content
- Presenting the content
Because they are both important.
Designing sustainable contracts
Helena: Traditional contracting is about ticking the boxes and transferring liability to the other party. Today we design content where the parties share responsibility. One example is shared responsibility for ESG: environmental, social and governance goals of the parties.
Contractual Clauses Project
Helena: You can access amazing information and 33 model ESG clauses along with Codes of Conduct for Responsible Procurement as part of the American Bar Association Working Group Contractual Clauses Project. It’s a wonderful initiative.
Presenting sustainable contracts
Research Handbook on Contract Design
Helena: Contracts and codes of conduct should be designed, not just drafted. And that’s where the proactive approach plays a part in shared responsibility.
All these great thoughts behind a more modern way, a more balanced way of contracting, they also need a presentation that is different from today’s conventional draft text only. Contracts and codes of conduct need to be actionable. They need to be user-friendly, and legally functional. You can read more about it in Research Handbook on Contract Design. Marcelo Corrales Compagnucci, myself, and Mark Fenwick co-edited this book.
WorldCC Contract Design Pattern Library
Helena: Stefania Passera and I created this library of contract design patterns. The tools are open-access and free and help solve communication problems and usability problems that often occur in contracting. People don’t read if they don’t find the information understandable, and engaging.
In this collection, we have 10 contract design pattern families.
Have a look at the pattern families like layering, explaining and various other ways the title shows you. And you can look for examples.
The examples come from companies like Shell, Airbus and others who kindly gave us permission to share their new modern visual contracts, and redesigned contracts. They illustrate how we lawyers can design and present contracts differently.
Contracts that are understandable, easier to follow and easier to bring into practice.
GPT-3: Using AI for Contract Design
Helena: AI is helpful in bringing everything into practice. AI and GPT-3 can be used for inspiration for layering.
If you haven’t tried Open AI, I encourage you to. It’s really a great resource and so much fun. I use it to simplify, personalize, explain and benchmark.
I first found out about this in an article about smart readers a year ago. And then later, we started to look into this, how this might help us, not just as readers, but also as writers. And as designers. And we’ve written about that in the book I referred to earlier. There are various things you can try on your own.
How can AI and GTP-3 help contract designers?
Helena: Translating legalese, or “sustainabilitese” into human language would be, I think, the greatest use. Helping us do what we want to do as designers.
You probably already use AI. We might not call it AI but if you use Google Translate or DeepL, you know how easy it has become to translate from one language to another. So now you can translate legalese to human, for example.
I use it for inspiration and to get over my writer’s block. I get great ideas in seconds. You can get tips for things that make you think, and you can use the tool for inspiration, or a first draft or starting point for an article or ideas for an event or various ways.
Layered information
Helena: I’m a big fan of layered information.
You can do it using hyperlinks, but you can also do it in one document, a PDF or Word document.
For example in the Creative Commons licenses, they have the legal code, the full text, then they have something they call human readable explanations, and then there’s the code layer.
If you’re familiar with the system, you don’t need anything but icons. If you’re not, you might want to skim-read the explanation, the human-readable summary. And then for lawyers who want to see the full text in their own words.
You could do this with any contract as they really have all the layers there.
You could have it through hyperlinks or accordions, but you can also have it on one document.
And with Rob Waller and Stefania Passera, we have been using layering a lot. And it seems to work. I now understand that some of you might say that, hey, this is dangerous, even headings are dangerous.
Is layering in contracts dangerous
Helena: You can overcome the dangers. And I wouldn’t stop here. There is research to be done. And there is development work to be done.
But the concept, proof of concept exists that people skim read the headings and find the answers they need rather than call us lawyers always or just ignore the contract altogether and find it not usable or useful.
Hannele: Wouldn’t you even say that this layering approach may be easier because you don’t have to let go of the original text entirely? You just build this user interface for your contract. So there still are the lawyer’s favorite clauses, but then there is also other information.
Helena: This is an approach that we have been using in contexts where the legal department has been against any change in their standard terms, for example, so yes, absolutely. And this may be for us who want to redesign things and clarify things. This might be the easy way to keep everyone happy.
Where do we go from here – coming events
Helena: There are events coming up on sustainable contracting.
This two-day online event is happening in December 2022: WorldCC Foundation Academic Symposium 2022: Advancing sustainable contracting.
Also, you can go to Lexpert Events and find upcoming events. We add new events regularly.
There’s AI, there’s Robert De Rooy presenting Comic Contracts. So there are various interesting things that are trending this year.
Resources
Helena’s recommended resources
Sustainable Terms of Trade Initiative
WorldCC Contract Design Pattern Library
Legal design thinking: IRL. Episode 32
You’ve just read a summary of my LinkedIn Live.
Each week I provide actionable advice for lawyers and discuss real-life legal design in action. This week we talked about proactive law and contract design trends.
What do you think about Helena’s talk? Are you going to check out the resources or play with open AI? I encourage you to check out the YouTube video so you can see the slide deck.
If you’ve read something that interests you please join me next week.
You can catch a replay of episode 32 here Legal Design Thinking: IRL or join me live and ask questions.
Want to chat about it?
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