Legal Design, a designer’s perspective on this new practice
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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...
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...
Agreed! Years ago I tried drafting an enterprise-software client's standard end-user license agreement (EULA) in FAQ format. The effort wasn't well-received by customer lawyers. I've wondered maybe it'd be different today but haven't worked up the nerve to try again.
But you didn't. Why do you think that is?
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.