Law and design thinking: Preparing graduates for the future of legal work

Law schools today

It has been challenging for law schools and legal education to keep pace with the rapidly changing nature of law and the future of legal work. For law schools, this may be related to the prevailing neoliberal model of legal education, where legal education is positioned as a private good which students consume with the primary purpose of advancing their career aspirations. ¹ There continues to be a high demand for student admissions to law degrees due to the value placed upon higher education in the 21st century, as well as the transformation of the degree into a valuable generalist qualification. ² To meet this demand, law schools have largely adopted a neoliberal model that centres curricula on practicality, productivity and efficiency; however, the drawback has been ‘poorer staff:student ratios, increased student perceptions of themselves as consumers and increased competition for student numbers’. ³ This approach has led to a culture of hyper-individualism where students are pitched against each other in a highly competitive environment that is largely fixated upon individual ability and merit, such as the highest test scores or highest paid internships and graduate positions. ⁴ It has also been difficult for the neoliberal legal education model – which prioritises efficiency and conformity over flexibility and innovation ⁵ – to keep pace with the rapidly changing legal profession. In Australian law schools, units are largely governed by the Priestley 11 requirements. While these requirements are important, as they allow the profession to have clear expectations about graduate knowledge and capabilities, they have the unfortunate effect of restricting student choices by minimising the number of units they can take in their chosen specialisation or that are most suited to the changing nature of legal work.

In addition to the discrepancy between the skills being taught in law schools and those needed for the future of legal practice, the fundamental assumption that the legal profession should be unbiased and rational is deeply problematic. ⁶ This assumption is increasingly incompatible with both successful student learning and the future of legal work, as the prioritisation of rationality over empathy is inconsistent with emerging industry demands. ⁷ Traditionally, law schools have designed learning around objective and dispassionate analyses of case studies, and the systematic application of rules. This approach overlooks the importance of emotions in promoting deep learning in legal education and critical engagement with social justice issues and in shaping the law. ⁸ Emotions are central to learning in higher education and also to the future of legal work, so by failing to acknowledge and account for them, legal education is failing students. ⁹ Therefore, it is increasingly clear that legal education needs to be reimagined to meet the needs of students.

The future of legal work

The future of legal work is becoming increasingly unrecognisable when compared with the traditional role of lawyers. Digital technologies are having a significant impact on how legal services are delivered, how legal practice is managed and how lawyers undertake their work in an increasingly global market. These changes have particularly emerged in response to the ongoing technological industrialisation of law, which has led to the growing adoption of platforms and tools that use artificial intelligence and automation to augment or replace the manual and cognitive tasks that were traditionally undertaken by graduate lawyers. ¹⁰ This trend is likely to continue, given predictions that up to 375 million jobs around the world will be fully or partially replaced by automation and artificial intelligence by 2030. ¹¹

As a result of these changes to legal work, graduate lawyers are being required to take on roles that draw on uniquely human skills such as creativity, customer service, care for others and collaboration – functions that cannot easily be automated. ¹² Many of these roles require lawyers to use creative thinking and human-centred design to consider alternative pathways to solve legal challenges. Solutions range from those that are small but powerful – for example, the Victim Assist Queensland web page recognises that seeking online support can be risky, so it provides a concealed exit button that immediately switches the user to the Google search page ¹³ – to large-scale systemic design such as the redesign of the Australian tax system. ¹⁴ Design is being used across the spectrum of legal services, including the creation and delivery of legal advice, legal practice structure and management, the provision of legal services, responses and solutions, to enhance lawyer-client communication, to think more broadly about the potential remedies offered by the judicial system, and more. ¹⁵ This creative approach to law is rapidly growing in Australia with its emergence in courts, government agencies and civil society. ¹⁶ One example of this is the collaboration between the Australian design and innovation company, Portable, and various government bodies and not-for-profit legal service providers, to improve user experiences and promote access to justice through technological solutions. ¹⁷

These changes are resulting in an increasing demand for lawyers with non-routine cognition and creative skills and attributes, like design thinking, suited to the changing nature of legal work,. ¹⁸ Recruitment platforms like SEEK and LinkedIn reveal a clear market demand with job advertisements for roles such as ‘Legal Designer’, ‘Legal Design Strategist’, ‘Legal Engineer’ and ‘Legal Technologist’. ¹⁹ In fact, Thomson Reuters’ 2021 report on the state of the legal services market in Australia highlighted that 30 of the 50 largest law firms had formalised an innovation role or function. ²⁰ Deloitte predicted that 2020 could be the ‘tipping point’ in terms of the expected pace of change and a need to ‘transform the approach to talent in a law firm’ ²¹ – a prophetic claim given COVID-19 and its considerable effect on work. Significantly, Deloitte also identified critical shortages in these human-centred skills in graduates. ²² This shift in legal practice should not be ignored by universities whose role is to prepare students for future work.

Design thinking

Design thinking in law – also known as legal design – provides graduates with a set of flexible mindsets and methodologies for responding to complex legal problems. The Stanford Design Lab defines ‘legal design’ as a systematic, ethical and exploratory method of addressing problems that are particularly difficult to ‘solve’ and which involve a range of competing stakeholders and interests. ²³ Practically, design thinking is often implemented through a five-step methodology, starting by empathising with the client or stakeholder (empathy), defining the specific problem to address (define), brainstorming possible solutions (ideate), tracking tentative ideas in a tangible way as they arise (prototype), and trialling those solutions with the client or stakeholder for feedback (test). ²⁴ The QUT Law School initially teaches the methodology in a linear way – so that students can develop their understanding and practise applying each step. But in the real world, the process is iterative rather than sequential, meaning that teams often return to previous steps – sometimes moving forwards and backwards multiple times – to amend and refine their ideas. For example, feedback might be sought at any step in the process to better understand the end user, refine the defined problem-statement, develop further ideas, improve prototypes or inform subsequent rounds of testing. Through this methodology, design thinking presents a model by which to approach ‘the most complex and ill structured problems’ and which have an ‘ambiguous specification of goals, no determined solution path, and the need to integrate multiple knowledge domains’. ²⁵

For law, there are said to be two core principles underpinning design thinking: first, the legal system should better serve the people subject to the law and, second, students and professionals working in the legal system should adopt a more creative, human-centred, and compassionate approach to designing legal solutions. Applying an interactive and iterative design process is an approach that is particularly well suited to responding to the global ‘wicked challenges’ of the 21st century, especially in the context of complex political and social systems. ²⁶

For law students, the process of design thinking offers a way to generate contextualised ideas and solutions, supplemented by research, interviewing and collaboration. Students are encouraged to reimagine the law and legal systems in ways that best serve society, rather than rote learning and the monolithic application of the law. Design thinking also recognises the key function of technology in shaping the future of law, but ensures it is designed to fit human needs, rather than assuming humans will be able and willing to adapt to disruptions caused by innovation. ²⁷ At its core, design thinking is about first, deeply understanding and empathising with clients and client problems, and then applying a methodology that allows final solutions to emerge. ²⁸

Law and Design Thinking

In 2019, QUT introduced the first dedicated design thinking unit in an Australian undergraduate law degree. Law and Design Thinking has now completed its third year – a sufficient period to understand trends in student feedback and graduate outcomes. Since its introduction, 146 students have elected to undertake the unit, which forms part of QUT Law’s LLB Minor in Law, Technology and Innovation. While traditional law curricula continue to teach students how to ‘think like a lawyer’ and apply the rule of law, this unit introduces students to a five-step design thinking methodology using an empathy-based and human-centred approach to problem solving. The unit provides students with the knowledge and skills they need to design and build better solutions to access to justice and other complex legal problems, including both legal services and products.

During workshops, students practise interviewing techniques and empathising, ideating using constraints to promote creativity, ²⁹ visual scribing (visualising aspects of the design process), prototyping their ideas, and seeking feedback so they can continue to refine their ideas. ³⁰ This includes applying techniques such as building 3D models (including through Lego Serious Play), ³¹ journey-mapping the flow of users and stakeholders, visualising or sketching the touch points for service on a storyboard, building a virtual version of an environment or scenario, or using software to ‘wireframe’ ideas for apps or websites. ³²

As technology is shaping the future of work, students also learn how to assess whether high-tech, low-tech or non-technological solutions are preferable in different contexts, and how to select and use a range of tools and platforms where appropriate. They develop entrepreneurial skills by learning how to evaluate their ideas by assessing viability, feasibility and desirability. ³³ This innovative and creative approach is changing the way graduates think about the law, legal services, access to justice, start-ups, technology, innovation and entrepreneurship. It is through this process of trial, error and iteration that students develop skills that better enable them to pioneer change and create novel social justice solutions. ³⁴ Students engage in community and industry-engaged learning, including participating in ‘design sprints’ with members of the profession from community legal centres, law firms, judges, pro-bono lawyers, legal start-ups, government and law reform, and legal and visual designers.

The most significant assessment item is a substantial, collaborative design sprint where students work intensively over 2 days with members of the profession to apply the design thinking methodology to an authentic access to justice challenge and then produce an extensive project report. Due to privacy considerations, particularly for those experiencing access to justice challenges, clients themselves, who are the de-identified subjects of the case studies, are not present at the assessment design sprint. ³⁵ However, members of the profession provide extensive insight into the experiences of specific clients and students use these to develop detailed persona profiles of their ‘client’ or ‘client group’. Student reports outline their understanding of the client’s needs, provide details of their design process, and present their prototyped ideas and testing. This information is supplemented by visual artefacts such as drawings, photographs, mind-maps and videos (where relevant). To date, students’ projects have responded to a range of access to justice challenges. For self-represented litigants, student projects have included the conceptualisation and early prototyping of: a virtual reality coaching programme for attending court; apps for locating and accessing real-time duty lawyer assistance; software designed to generate submissions for sentencing hearings based on a user’s response to questions; and a mobile app designed specifically to connect English as a second language self-represented litigants with translation, legal and peer support. For those experiencing restricted access to justice due to COVID-19, student projects have included: a web-based service to support prisoners on remand awaiting criminal trials by providing them with legal information and representation; concealed apps allowing sufferers of domestic violence to access local support; and a digital platform and chatbot to provide information, support and access to pro-bono lawyers for foreign workers who became unemployed during COVID-19 and were unable to access government assistance. For those experiencing, or who are vulnerable to, elder abuse, student projects have included various education and support programmes ranging from in-person to easily accessible locations (such as supermarkets, medical and health receptions, a bingo community hall), to online interactive support services. In some instances, students have provided their final reports to industry representatives for the benefit of those organisations, and others have connected with additional entrepreneurial and start-up support to advance their ideas.

Student feedback and graduate outcomes

Student feedback from Law and Design Thinking has been exceptional and graduates have reported considerable demand for their legal design skills and experience, reinforcing the importance of this subject. Recent student survey results placed Law and Design Thinking as the highest-rated unit in QUT’s Minor in Law, Technology and Innovation, and the third highest-rated unit (out of 74 units) in the Law School. According to students, learning about design thinking has been inspiring – ‘this unit has empowered us to believe that there are legal solutions yet to be discovered and that we can be the ones to create them’ – and expanded the way they conceptualise legal problems – ‘if this was made a core subject it would benefit the legal industry greatly as lawyers would go into the workforce with this great methodology and perspective’. ³⁶ It supports students to develop skills and understanding in areas that are unconventional in law, such as empathy, complex reasoning, creative problem solving and dynamic social intelligence: ‘this unit encouraged us to connect with different methods of thinking’, to be ‘creative and think outside the box’, and ‘it’s interactive, creative and expands your thought processes’. It also supports students to develop a fundamental skillset that they can use both within and beyond the law: ‘I will use the skills and methods I have learnt from this unit throughout the remainder of my academic life and into my career’ and ‘the skills I have learnt in this unit are not only transferable across other units but are also highly marketable to future employers’.

Importantly, students’ feedback also indicated that the unit increased their emotional awareness, empathy and identity as a ‘global citizen’. For example, one student identified that the unit challenged them to ‘confront the realities of the current legal system and take responsibility for how law will look in the future’ and that they felt compelled to persuade others of the benefits of a design thinking approach for law – ‘I have already begun recommending the unit to my peers in hopes that they can also adopt a more human-centred creative approach to solving legal issues’.

Significantly, while Law and Design Thinking was only introduced in 2019, the creative design thinking methodology is already giving rise to long-term career outcomes. For example, graduates include the co-founder of an internationally recognised start-up that has received substantial seed funding, a successful appointment to the Law Design and Practice Group in the Australian Tax Office, a winner of Generation Innovation (for the creation of a legal app concept); and a legal designer tasked with redesigning contracts for a start-up.

Embedding design thinking in legal curriculum

Queensland University of Technology’s Law and Design Thinking unit is not alone in its endeavour to embed new skills in legal education and practice. A review of the syllabi of Australian law schools in 2018 revealed that 25 of the 40 institutions offered some form of ‘legal innovation’ course, whether through undergraduate or postgraduate coursework, a major or minor, an extra-curricular commitment, a student-led group, or an innovation centre. ³⁷ Institutions that have introduced related units or courses, some of which include design thinking, are Flinders University, ³⁸ Swinburne University, ³⁹ The University of Melbourne, ⁴⁰ RMIT University, ⁴¹ and the University of Newcastle. ⁴² The College of Law has developed a six-week course on Innovation: The market-driven transformation of legal delivery and the law’s emerging collaborative culture; ⁴³ and the national non-for-profit The Legal Forecast holds an annual 54-hour hackathon for higher education students focused on ‘Disrupting Law’ to create opportunities for new legal innovations. ⁴⁴

While design thinking is gaining traction, the methodology is nascent in Australia’s legal industry compared to the rate of uptake internationally. One of the most established examples of legal design thinking in a higher education institution is the Stanford School of Law’s ‘Legal Design Lab’, which works on developing legal products and services for human-centred innovation. ⁴⁵ Other initiatives include Northeastern University’s ‘NuLawLab’, an interdisciplinary innovation laboratory and focused on legal empowerment through design thinking, and IE Law School’s ‘Legaltech Innovation Farm’, an interdisciplinary legal innovation centre for the development of disruptive legal technologies and solutions. ⁴⁶

The success of Law and Design Thinking and similar global initiatives demonstrates the considerable market demand for design thinking skills and experience. Further, the ongoing research around the benefits of design thinking in the legal discipline demonstrates the significance of these skills for graduates. However, the onus to develop design thinking skills should not be placed on students alone. Traditional teaching methods in law schools that are focused on instructionism must be supplemented by units that cultivate the human-centred competencies required for the future of work. ⁴⁷ COVID-19 has potentially heightened this need as the move to greater online collaboration has generated an increasing demand for law schools to proactively respond to the changing nature of legal work.

The various approaches to legal design being taught globally have the commonality of placing the user at the centre. Those users are many and varied, ranging from students to clients, client groups, law firms, governments, and other organisations or businesses. For students, a design mindset provides a new way of thinking about their roles, responsibilities and powers as legal professionals, as well as a new way of doing in a creative, safe learning environment that promotes trial, error and innovation. For clients, legal design provides an approach that starts with an empathetic and holistic understanding of their problems and needs, acknowledges that the most effective response may be non-legal, and tries to make ‘unexpected connections and see combinations other do not see’. ⁴⁸ This approach is different to more traditional legal problem solving, which (necessarily) identifies and targets specific legal issues, then relies on rationality and the application of the rule of law. Providing students with different ways of thinking and doing allows them to identify and select approaches that will work best for their client and the legal context.

Some of the most common criticisms of design thinking are that it is poorly defined, it dilutes the creative process into one that is linear and structured, or is not well suited to all organisational cultures and conditions. ⁴⁹ It is important that students understand it as a philosophy or paradigm, that they develop the skills to apply it flexibly, they seek to establish a culture of trust and safety that promotes creative thinking, and they recognise design thinking as an approach that coexists with more traditional rational analysis. ⁵⁰ It ought not to be taught as ‘the creative and innovative method for handling wicked problems’ but as a set of core values, tools, principles and features, that can be applied to strategies, systems, organisations, services and policies in ways that are fit for purpose. ⁵¹ One of the most significant shifts in thinking for law graduates, is that traditional legal thinking is about ‘finding the right answers’, but design thinking is said to be about ‘finding the right questions’. ⁵²

Universities must take seriously the need to embed design thinking in curricula. Higher education institutions are positioned to be both shaped by, and to shape, the future of work for graduates. Thus, updating curricula has the potential to transform both education and the legal profession. In terms of transforming education, design thinking provides an opportunity for law schools to engage in empathetic models of co-design with students as partners in developing new models of learning that are engaging, equitable and responsive to the challenges of the 21st century. ⁵³ This is also an opportunity for universities and law firms to consider their business models and external accreditation requirements that may, inadvertently, inhibit innovation. While it may seem counterintuitive, innovations in the legal services market that are adopted rapidly and widely, rather than slowly, are desirable. ⁵⁴ We must find ways to ensure delays caused by our own frameworks do not provide disincentives or obstacles in legal education or the legal sector that prevent quality innovation and creativity. By embedding design thinking in curricula – and potentially applying co-design models – law schools can ensure graduates are equipped with the problem solving, communication and technical skills necessary to maintain pace with the rapidly evolving legal sector job economy and create better legal futures.

Conclusion

This article has identified how the rapidly evolving legal landscape is increasing the need for law graduates to acquire new skills and capabilities, such as design thinking, so they are prepared for the future of legal work. Queensland University of Technology’s Law and Design Thinking unit teaches students how to apply innovative mindsets, establish deep empathy with a broad range of stakeholders, embrace creativity, prototype using a range of tools and platforms, openly receive feedback and refine their ideas, increase their awareness about global access to justice issues, and more generally encourage students to embrace ‘life-long learning’. ⁵⁵ The success and graduate outcomes of this unit, as well as considerable market demand and increasing adoption of design thinking in the profession, provide strong grounds for law schools to embed design thinking in legal curricula. This will ensure students can develop the human-centred skills they will need to advance their careers and create real world impacts. This means graduates will be well-positioned for the future of work and this should lead to better legal futures for everyone.