Jusletter IT

In the case of most products, it is easy to tell good ones from bad. Yet legal products are different. Whether we look at laws, letters of advice, policies, or terms of use, it is not always easy to agree on which are the «better» ones or what «good» means in this context. Does it mean precise and comprehensive, or perhaps easy to access and work with? Should it be judged on substance, language, style, impact – or perhaps all of these? And who is the ultimate judge?

Empirical research shows that legislation is difficult to read if not incomprehensible to most citizens.¹ And not just legislation: other law-related texts that seem perfect for their writers may be close to non-readable for their readers. If laws or legal materials are ignored or misunderstood by those who are expected to read and act upon them, there is something seriously wrong. There must be a better way.

This paper views legal documents as information products² and looks for ways to communicate their contents more clearly and effectively. It builds on the principles of information design: «the process of identifying, selecting, organizing, composing, and presenting information to an audience so that it can be used efficiently and effectively by that audience to achieve a specific purpose.»³

This paper argues that the ultimate judges as to what makes a «good» document – legal or otherwise – should be the end-users: those impacted by or expected to act upon the document: in case of legislation, citizens or organizations; in case of legal advice or transactional documents, the client, perhaps also the client’s (potential) customers, suppliers, and so on, depending on the context.

For the purposes of this paper, a precise definition of legal documents is not needed: the concept is used in a wide meaning. In addition to documents creating legal rights and obligations or containing legal information⁴, it includes documents that are often produced by lawyers, such as end-user licenses, contracts, memoranda, advice letters, opinions, policies, employee handbooks, by-laws, and terms of use. While the examples and case studies used in this paper represent particular fields of application, much of what is discussed here can be applied to a wide range of documents, including legislative and transactional documents as well as materials explaining them.

«There are two things wrong with almost all legal writing. One is its style. The other is its content.» Fred Rodell, Professor or Law, Yale University.⁵

A look at today’s legal documents reveals that many would benefit from a complete overhaul – assuming that they are expected to be read and understood. Legal writing seems to be the norm, even if the vast majority of readers do not have law degrees and may be confused or intimidated by such writing.⁶ New people entering the field as drafters may question the style at first, but adopt it as part of the culture. Newcomers, too, want to make their documents look «professional» and «legal». ⁷ So they continue drafting documents that users find non-readable or only lawyer-readable.

The comments about legal writing cited above were made by Fred Rodell in an article published in 1936. This criticism still applies to today’s legal documents. Their drafters tend to prefer legalese and «tested language» presumed to have a clearly established and «settled» meaning. The result is often a writing style that has, according to one critic, four outstanding characteristics. It is «(1) wordy, (2) unclear, (3) pompous, and (4) dull».⁸ «Tested language» and «settled» meaning refer to language that has been the subject of litigation. Which raises the question: why rely on language that resulted in litigation in the first place?⁹ While such language may help to win a battle in court, it does not help those who want to avoid such conflict. Moving from legalese to plain language certainly helps, ¹⁰ yet it cannot solve all the problems alone. A more profound change is required.

There is no consensus about the characteristics and qualities that are required to make a legal document «good». If we understand legal documents as information products, all good writing – legal or otherwise – begins with an understanding of what the audience needs and expects, and adapting one’s message and documents accordingly. Even the best legal writing is misplaced if it does not serve the needs of the users.

Seeing legal documents as products (artifacts, devices) makes it natural to view their usability and user-friendliness no differently from how usability and user-friendliness are viewed in the context of other human-made objects. Inspired by David Howarth’s book on law as engineering,¹¹ this paper argues that, like engineers, lawyers could (and should) seek to produce more useful devices: documents that are easier for users to understand and work with.

Readability is no doubt an important aspect of good documents. In their book What Makes a Book Readable, William S. Gray and Bernice E. Leary identified more than 200 elements that affect the ease (or difficulty) of reading. They grouped these elements under four main headings: (1) content; (2) style; (3) format; and (4) features of organization (chapters, sections, headings, and paragraphs). Of these four, the authors found that content was most important, with a slight margin over style.¹²

A range of organizations assess documents for clarity.¹³ Information design scholars have developed research-based criteria for good (or clear) documents and benchmarked documents for clarity and usability.¹⁴ The Simplification Centre uses the following four basic criteria:¹⁵

Content: the selection of information to be communicated

Structure: how the information is organized, sequenced and linked

Language: how the information is expressed in words

Design: the typography, layout and graphic design of the document

The Simplification Centre has mapped these criteria into a 4 by 3 matrix shown in the following figure (Figure 1), where the horizontal dimension shows the four types of input that the producer of the document applies in creating the document, and the vertical dimension shows three aspects of the reader’s response to the document, which together determine its effectiveness:

Figure 1. A Matrix of Criteria for Clear Documents¹⁶

 

As shown in Figure 1, the readers’ response is viewed through three different aspects:

Feeling: the readers’attitude and their emotional response («feel»)

Understanding: what they know from reading it («know»)

Action: what they are able to do as a result («do»)

The above matrix and criteria can be applied to legal documents as well: these, too, can (and should) be assessed in terms of content, structure, language and design. As regards the readers’ response, the writer/producer might ask questions such as: «Will the intended audience use this document?»; «Does it appear interesting?»; «Does it appear relevant?» and «Will the audience take the time to read this document?¹⁷ If these questions are answered in the negative and the documents are not read, they are unlikely to work. While the writers of legal documents may not have emphasized readers» attitude or response, these questions highlight the need for doing so, in order to craft documents that are actually going to be read and stand a chance of being acted upon.

While the above criteria are useful for designing better legal documents, there is something missing: the criteria do not address the legal qualities of the documents. Good legal documents as envisioned in this paper cannot omit this aspect entirely. Good legal documents need to be legally sound, and the possibility of a dispute and judges or opposing counsel as readers needs to be kept in mind. This tends to add to the length and complexity of legal documents. After recognizing the different users, the document designer has to consider their different needs and requirements and prioritize them. The following examples demonstrate that it is possible to bring together what is desirable from a usability point of view with what is legally sound.

The ultimate goal of information design is clear communication and enabling users to interact with the information. The selection of methods used is based on what is suited to express the particular information to the particular user group in a particular context. For easier reading, more prominence needs to be given to what is more relevant to the user.¹⁸ Text alone can seldom provide prominence or salience to a piece of information. Visualization – adding icons, charts, tables, and images to supplement text – can be used to do this.

Information design and visualization offer legal document drafters new and better methods to truly serve their audiences. It is not enough to know how to write well; one should also learn to engage others in the process, elicit information, and communicate the core message effectively to the different readers. If we take the goal of better legal documents seriously, the drafter’s job changes from merely drafting clear and concise documents to designing communication with multiple user groups and varying information needs. This also involves responding to and balancing their different needs and requirements through layered information and other means. The following examples illustrate how this can be and has been done, using insights from information design.

Wikimedia Foundation introduced a trademark policy in 2009. In 2013, their legal team prepared a new draft trademark policy to strike a better balance between the interests of the Wikimedia community and trademark law and to create a document that better communicates how people can use Wikimedia trademarks.¹⁹ In preparing a new draft document, the legal team relied on information design principles to make the draft user-friendly. The simplicity of language was one factor in enhancing its usability, as were appearance and format. The legal team also tried to organize the document in a logical manner so that users could quickly find provisions relevant to them without having to study the entire document.²⁰

Unlike how legal documents are typically prepared, the new draft policy was developed in public, «the Wiki way». The first step was for the legal team to solicit comments on how the policy should be revised and then prepare a draft based on that input. They teamed up with legal information researchers and practitioners to organize two workshops, Legal Design Jams,²¹ to brainstorm about how to make the policy more user-friendly using colors, visuals and other information design methods.²² The Legal Design Jams in Stanford and San Francisco brought together professionals and students with law, design, computer science and policy backgrounds to work and learn together. Figure 2 shows an excerpt from their work, a visualized summary of the new draft trademark policy, asking the core question «May I use the Wikimedia marks?» and grouping the answers under traffic light colors: green; «Yes, please!» (use does not require permission), yellow: «Yes, but first…» (permission must be sought), and red: « Sorry, no» (for uses that are prohibited).

 

Figure 2. Excerpt from Wikimedia Trademark Policy Draft for Community Discussion²³

Next, the draft was posted on Wikimedia Meta-Wiki for feedback from the Wikimedia community across the world. The initial comments suggest that people like the new design and find the document approachable and easy to read. According to Yana Welinder, Wikimedia Foundation’s Legal Counsel, the design and readability of the draft also improved the discussion of the draft: people could get a better overview and understand the legal terms, so they could become involved in the discussion and comment on the substance of the terms. It helped them propose revisions or point out scenarios that were not yet addressed by the draft.²⁴

When Corrs Chambers Westgarth (Corrs), an Australian law firm, consulted with their key clients about what they look for when seeking advice from lawyers, clients raised common themes such as «be concise» and «make a practical recommendation», and «declutter the issues to show you understand the situation».²⁵ These themes became Corrs’basic criteria for designing their new advice template. Their goal was clear, incisive advice that clients can easily act upon.²⁶

The advice template has a front page summary that gives the answer and recommendation upfront and a «traffic light» risk analysis table that identifies and rates legal risks on a scale from low to high. It incorporates document design principles which make it easy to read: a significant shift away from the traditional long letter of advice which does not necessarily offer a definitive opinion.²⁷

The modular design of the advice template consists of three parts: 1) the front page summary captures the advice upfront; 2) the body explores the key issues, and 3) the annexes contain the background facts and details. For those seeking a short advice, the front page summary captures the question, answer, risk analysis and next steps. This promotes brevity and clear expression. The clearly defined sections highlight the key issues by having main headings phrased as questions to engage the reader; section summaries in bold at the start of each section give a brief answer to the question; and the numbered paragraphs make the advice navigable.²⁸ Corrs has sought to balance good design and the client’s perspective with their lawyers’perspective and ease of use.²⁹

The Corrs advice template example above illustrates how layered information can be used as a way to simplify legal documents. This means designing a document so that it can be read first at a summary level that gives an overall understanding, with additional information available if needed. This structure is widely used in writing for the World Wide Web, where readers can click on a link to find more details. It is also effective in printed documents.

Several projects have looked into the simplification of legal materials, such as online policies and terms and conditions, seeking to solve the problem of non-accessible legal texts.³⁰ Creative Commons licenses³¹ rely on layered information: first, there are simple, recognizable icons that can be clicked on to reveal a plain-language version of the relevant text. If additional information is required, the full text is also available just one click away. As illustrated in Figure 3, there is the so-called Legal Code (the «lawyer readable» version, the full license), the Commons Deed (the «human readable» version), and the «machine readable» version of the license.³² To choose a license, a creator of a work who wishes to become a Creative Commons licensor answers a few simple questions, such as «Do I want to allow commercial use?» and «Do I want to allow derivative works?» The introductory text to the Creative Commons licenses invites the reader to think of the Commons Deed «as a user-friendly interface to the Legal Code beneath».³³

Figure 3. The Three Layers of Creative Commons Licenses³⁴

Experiments exist that prove how credit card agreements and other consumer contracts as well as commercial contracts can benefit from a new, more user-friendly approach.³⁵ Further projects have aimed to simplify, for example, an online game’s terms of service, a rail network’s disclaimer, and a law firm’s standard terms of engagement.³⁶ These examples rely on layered information, visualization, and other information design methods. Together, they demonstrate that it is possible to bring together what is desirable from a usability point of view with what is legally sound. New templates and automation, once available, can make these methods accessible to a wider audience.³⁷

Legal documents are not just about the law – they are also about information and communication. When drafting legal documents, the focus is typically on the content and legal concerns, rather than the documents’appearance or «look and feel». However, for those whose rights and duties depend on the documents, these aspects matter. Overly complex documents may be ignored or misunderstood, and their implementation may fail.

Information design offers tools and methods that help elicit information and communicate complex messages clearly and effectively. Using these methods at the document preparation stage, drafters can engage others in the process and collaborate with them to produce better drafts. Layered information and visualization can make the core message easy to find, understand and act upon. Drafters can adopt from designers and engineers a fresh, innovative approach to document design: one that helps them produce documents that meet or exceed lawyers’and other users’expectations.

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Helena Haapio

Business Law Teacher & Postdoctoral Researcher, University of Vaasa / International Contract Counsel, Lexpert Ltd

Pohjoisranta 20, 00170 Helsinki, FI

Helena.Haapio@lexpert.com; http://www.lexpert.com

 

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