Simple questions and simple problems require simple answers and simple solutions. Our world, however, is often more complex than that. And complexity needs us to think more innovatively and to find creative ways to solve the problems that arise.
And that’s where design thinking can have the most impact for lawyers in their practices: when a more complex client problem lands on your desk. With the ever-onward march of the machines, we need to distinguish what makes lawyers different. Simple interpretations of the law may ultimately become the purview of the robots, but they’re not creative enough to find novel solutions and to build strategy and consensus around that option. Lawyers can. Adopting some of these design-thinking techniques can empower lawyers to stretch their problem-solving skills in new and transformative ways for both client and firm.
What is design thinking?
At core, design thinking is a method used by designers to solve complex problems and find desirable solutions for clients. In the literature, it is often described as a process, such as: Empathize — Define — Ideate — Prototype — Test
(What a perfect example of using catchy power verbs to supercharge an idea!)
Designing for Growth breaks it down into simpler questions: What is? What if? What wows? What works?
The first step is to make sure we understand the problem with which we’re faced. We have to resist lumping a current problem into the same bucket as others we’ve encountered. For the simple and standard files, this can make sense on efficiency grounds. But even in those, it is still vital to understand the individual client sitting on the other side of the table. We must understand the specific client goals and what a successful outcome looks like for them. We need to clarify the client’s position and stand in their shoes as we unwrap the problem. For the big and complex files, we have to understand the client’s risk tolerance and the shifting nature of that appetite as the circumstances of the deal or case change.
In design thinking, there are many different techniques that engage this ability to reframe the problem and see it from different viewpoints. One powerful but simple way is to ask “Why?” The more we ask that question, the more we can dig deeper into the reasons behind a client’s need for a solution. It allows us to see the problem through different frames or perspectives.
A recent Harvard Business Review article on the topic (“Are You Solving the Right Problem?”) uses the “slow elevator” example to explain problem framing. Simple solution finding may suggest options to make the elevator go faster, whereas design thinkers faced with the same problem may reframe it as “the wait is annoying” instead. They may map out the experience of using an elevator to consider solutions that can make the wait feel shorter. (The reason mirrors or reflective surfaces are often near elevators is that apparently we lose track of time when we’re given something incredibly compelling to look at, i.e., ourselves.)
Once we’re sure that we’re solving the right problem, we can dive into uncovering solutions. This is where the thinkingout-of-the-box happens. It’s where design thinkers brainstorm as many ideas as they can as quickly as possible. The idea is not to find a single practical solution at this stage; it’s to explore possibilities. Brainstorming stretches thinking beyond our usual analytical frames of reference to come up with new and possibly untried designs and solutions.
To reach a different kind of solution, you have to use different kinds of thinking (to paraphrase Einstein). Instead of waiting around for the eureka moment to happen, brainstorming helps engage the other parts of our thinking. The use of trigger questions during these design-thinking sessions can elicit new ideas, from questioning assumptions (what if we didn’t do it the way it’s always been done?) to exploring extremes (what if software could be patented and seen as a machine rather than an abstract intellectual concept?) and on to pretending to be somebody else (what if we were on the other side of this transaction or case?).
This is where creative problem-solvers prioritize the ideas generated to find out which of them “wows!” (It’s not a word that often comes up in legal services, I admit.) But here it means finding the sweet spot between “valuable, doable, scalable and defensible.” To move forward into the next phase, the idea must be valuable (to the client), it must be achievable by the lawyers involved, it must be applicable and scalable to the specific facts of the case and it must be defensible (to manage risk and operate within ethical frameworks). This is known as “assumption testing” of our hypotheses. This engages more of our familiar analytical and legal reasoning in order to test future possibilities and outcomes of the drafting or solution.
The final phase is often known as “prototyping” — testing in the real world by creating a physical experiment. There is nothing like testing with a physical manifestation of your idea to see whether it will actually work. It’s even better if you’re able to get others to use the system and see which bits make sense to them and which don’t. Sense-checking your innovative thinking or drafting with other smart lawyers/your client can be invaluable in this phase.
Design thinking is a powerful practice to turn to when you need out-of-the-box thinking. If you want to innovate, then it’s pretty easy to get started with some simple techniques for thinking about what is, what if, what wows and what works. The design thinking toolkit is big, and as more lawyers develop experience using it, we can take on even bigger challenges and radically rethink how firms serve their clients.
Kate Simpson is national director of knowledge management at Bennett Jones LLP, and she is responsible for developing the firm’s KM strategy and initiatives. The opinions expressed in this article are her own.