[HN Gopher] Legal Design, a designer's perspective on this new p...
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Legal Design, a designer's perspective on this new practice
Author : JoySch
Score : 11 points
Date : 2021-02-25 09:55 UTC (1 days ago)
(HTM) web link (blog.link-value.fr)
(TXT) w3m dump (blog.link-value.fr)
| dctoedt wrote:
| For several years I've been following the "legal design"
| discussion from afar.
|
| 1. The goal is certainly laudable: easier understanding of legal
| documents for lay readers. BUT:
|
| 2. _The contract_ is by far the most common form of legal
| document -- and working lawyers (and other contract
| professionals) seem unlikely to become skilled in using graphics
| software for drafting and revising everyday contracts; too many
| don 't even know how to use Microsoft Word properly.
|
| 3. Graphic images are useful to convey broad concepts but too-
| often insufficiently precise for use in conveying the fine points
| of the parties' rights and obligations.
|
| 4. D.R.Y. applies here too: Careless editing can easily lead to a
| mismatch between words and graphic images, which in turn can lead
| to expensive litigation. We already see this when drafters repeat
| numbers, for example "ONE MILLION SEVEN THOUSAND AND NO/100
| ($1,700,000.00) DOLLARS" -- _exactly_ this wording cost a Texas
| lender $693,000 because in this context, words take precedence
| over numbers; [0]
|
| 5. Clients won't often want to incur the expense of bringing in a
| design specialist to add graphics to a routine contract when old-
| fashioned words will be (perceived as) "good enough."
|
| [0] See _Charles R. Tips Family Trust v. PB Commercial LLC_ ,
| https://scholar.google.com/scholar_case?case=659315655971355...
| pieno wrote:
| I feel you're focussing too much on the graphics part. Sure,
| some carefully crafted graphics will usually be helpful to
| improve a reader's comprehension of what you're trying to say.
| But too much focus on the graphics part ends up with the same
| pitfall as modern software UI/UX, that seems to be optimised
| for having fancy, clean, modern looking screenshots on the
| product landing page and marketing materials, rather than
| actually improving the user's experience when using the
| [software/contract]. I.e., the unstated actual goal of the
| UI/UX is to improve the vendor's experience marketing and
| selling the product, instead of improving the user's experience
| achieving the product's intended purpose.
|
| In my experience, "legal design" frequently reduces complexity,
| not by carefully understanding and clearly explaining what is
| meant or by improving the underlying process or agreement, but
| by just deleting complex things altogether and only keeping the
| simple stuff. This ignores that even the most boring
| transaction can actually be pretty complex, in the same way
| that implementing a seemingly small feature in software may
| actually turn out to be a lot more complex when actually
| writing down functional requirements, let alone the technical
| implementation. It doesn't help to have someone eagerly drawing
| some fancy graphics that only tell 5% of the story and deleting
| the other 95% as if it's not relevant. Sure, it looks good at
| first sight but it completely misses the point.
|
| However, I am hopeful that more and more companies are
| realising that it makes business sense to actually improve
| their standard contracts. It just doesn't make sense to have
| lawyers drafting a document that no one reads but that actually
| governs the client/supplier/employee/... relationship, and then
| spending a lot more money on creating a completely different
| set of materials (e.g. FAQ, help pages, standard support ticket
| responses, ..) that are actually read and (hopefully)
| understood but which are (almost) meaningless to determine the
| parties' actual rights and obligations. It seems entirely
| logical to have these people working together to create a
| single set of materials that is both understood by all users
| AND the ultimate "source of truth" governing the relationship.
| The direct cost of creating this single set of materials will
| likely be higher than creating two sets, but the indirect
| benefits and cost-savings should be well worth it.
|
| Obviously, there are limits to this. In a lot of cases, mostly
| for non-commoditised enterprise products, ambiguity between the
| non-binding (transactional) marketing materials and the actual
| contract that no one reads, is not a bug but a feature. But
| that's a different story...
| rkagerer wrote:
| The author hits on the crux of the problem within the first few
| paragraphs:
|
| _Almost all of us have experienced a situation where we had to
| sign a document without paying too much attention to the
| important lines._
|
| I found the post fluffy, but agree most companies fail to draft
| legal contracts in language consumers understand or lengths they
| find palatable. And most consumers are conditioned to just
| blindly hit "I Agree" without actually reading any of it.
|
| I guess I'm one of those few people who DO tend to READ what I'm
| signing. I've flatly refused to use services because of
| objectionable terms in their ToS. When you become obstinate
| against tolerating commercial inequity, it's amazing how many
| services you discover you can live without. I recognize not all
| of us are in a position where we have the luxury to say NO.
|
| Where I have no choice, I've communicated with vendors
| immediately after clicking the "I Accept" button and informed
| them I'm withdrawing my consent to whatever term is unreasonable.
| Only once have they actually asked me to stop using the service.
| Typically the agent doesn't know how to handle the request and
| just ignores it. No guarantee that would offer you any protection
| in the event of litigation, but it might muddy the waters -
| especially if the judge agrees the term in question is too
| onerous.
|
| I also regularly notice mistakes in about 80% of the legal
| documents I read - recently my bank (one of the "Big 5" in
| Canada) had a term that included a double-negative effectively
| reversing the intended meaning and, strictly speaking, saddled
| them with more liability and risk exposure instead of sheltering
| them from it. It's not uncommon to find typos, placeholders not
| filled in, etc - my point is, not even companies' own lawyers are
| reading their contracts closely enough.
|
| In Canada at least, there's case law to support the validity of
| website terms of service (although if you get into the weeds
| there can be a subtly different bar for e.g. Browse-Wrap vs.
| Click-Wrap ones). There are also examples where complicated
| language and the unequal bargaining power between the company and
| consumer had the effect of watering down the agreements - or
| judges ruling no consensus ad idem was reached and throwing it
| out altogether.
|
| Some companies are beginning to recognize human-friendly legalese
| is not only considerate, but in their own best interest to
| maximize enforceability.
|
| I applaud projects like ToS;DR (https://tosdr.org/) for shining a
| light on the terms of popular sites.
| staticautomatic wrote:
| I was tempted to stop reading when I got to "This particularly
| innovative approach brings the digital transformation in law to a
| new angle of reflection with a collaborative methodology
| involving several stakeholders." I wish I had.
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