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Why "Legal Problem Solving"?

Or, how the constraints of a name inspired a new kind of law school course.

 

By Prof (Cat) Moon

Designers thrive on constraint. In fact, constraints often are the very things that drive creative problem solving by providing critical structure and focus. And so it was with this course, Legal Problem Solving (LPS).

And it's the very course name that constrained me in designing this course. I didn't embrace this constraint at first. And once I did, the opportunities this constraint held became so obvious.

Before there was a name. Or a course.

This course began as simply an idea — to bring the concepts of human centered design to bear within the domain of law, the practice of law, and the delivery of legal services, and all within the context of Vanderbilt Law's Program on Law and Innovation (PoLI).

The law, the legal services industry and legal education are all undergoing unprecedented transformations as a result of rapid social, economic and technological changes. Vanderbilt’s Program on Law and Innovation is designed to equip Vanderbilt Law students to become innovators who successfully navigate and influence the directions in which these changes take law and the legal industry throughout their careers.

PoLI's core curriculum addresses the changing legal practice landscape (Law Practice 2050), adoption of new (and now soon to be ubiquitous?) legal practice tools (Legal Project Management) and the role of technology in access to justice and legal services delivery (Technology in Legal Practice). Past core offerings have included Electronic Discovery and Information Governance and The Law as Business, as well.

The core PoLI courses (along with these related ones) give Vanderbilt Law students insight into and meaningful experience with the issues and forces that drive change and innovation in both the evolution of law and in the delivery of legal services in the U.S. And, fulfilling the PoLI mission, they begin to prepare them to become innovators "who successfully navigate and influence the directions in which these changes take law and the legal industry throughout their careers."

I say begin. Because there was something missing.

That missing something? Human centered design.

Why human centered design?

As this post is not intended to be a detailed explanation of what human centered design (also often referred to as "design thinking") is, you can go here for a great introduction to the process and its purpose. (You also can peruse the Resources section of this site for much more information on the process of design thinking.)

Design thinking is a human-centered approach to innovation that draws from the designer's toolkit to integrate the needs of people, the possibilities of technology, and the requirements for business success.

 

— Tim Brown / IDEO

At essence, design thinking is a process for creative problem solving. And as such, I posit that human centered design is critical to both how we solve legal problems for clients and how we deliver legal services to clients, especially at this juncture in the evolution of our profession.

At the center of our professional obligation is THE CLIENT. Human centered design puts THE CLIENT at the center of how we do our work. Quite simply, it is the heuristic that has been missing from both legal education and legal practice.

As I explained to LPS students on day one, in law school you are given a primary tool: you are taught (via the case method) to "think like a lawyer." I call it the hammer. Have a legal problem? Use the hammer. And the hammer comes in very handy to solve many legal problems. But. You can't solve all problems with a hammer. Not every legal problem is a nail. And you need more tools than just one.

To "think like a lawyer" means adopting an emotionally remote, morally neutral approach to human problems and social issues; distancing oneself from the feelings and suffering of others; avoiding emotional engagement with clients and their causes; and withholding moral judgment. To think like a lawyer one must be dispassionate in analyzing a client's legal problems and options, and in developing a legal strategy for achieving the client's goals.

 

– Stephen Wizner, Is Learning To "Think Like a Lawyer" Enough?

Especially in this day and age, when it's quite apparent that clients are rejecting the hammer as the sole tool. And the now-irrefutable evidence that the hammer-wielding lawyer alone can't serve all of the legal needs that go unmet each and every day in this country.

Yes, to solve legal problems, a lawyer must think like a lawyer. But guess what? Thinking like a lawyer requires you first to think like a client. Because until you understand where the client stands, and have a holistic view of the depth and breadth of the problem, you cannot provide the best solution. (See Einstein quote at top of post — the best solutions come from thinking more about the problem.)

And this is what the problem-solving process of human centered design requires. It requires you to first THINK LIKE A CLIENT in order to more fully understand the problem, before you engage in problem-solving. To BE CURIOUS about the client's situation and needs. To come from a place of empathy, and do a deep(er) dive into context and understanding. BEFORE you wield the hammer.

And now, back to why "Legal Problem Solving."

The course name — Legal Problem Solving — wasn't my first choice. I view this course primarily as one in human centered design, and how this heuristic can be applied to three aspects relevant to a legal education:

#1 How to design better, more effective legal services that serve more people; 

#2 How to better solve legal problems — or, client problems that happen to have a legal component (which I believe more accurately describes most client problems); and

#3 How to design better professional journeys through the legal profession — some would call this designing a better legal career.

The name was "suggested" because (a) it fit within the ABA's course name guidelines, and (b) it was unlikely to raise suspicion among those who would question a course in human centered design or "legal design" (which apparently was important in order for the course to be approved and added to the schedule).

So, for bureaucratic and political reasons, Legal Problem Solving it was.

And as I embraced the name and the initial constraint I felt (yes, it aptly described aspect #2, but not really #1 or #3?), and simultaneously thought more broadly about what it means, I realized that it's quite perfect.

Because here's the thing: ALL of the aspects of this course deal with solving problems we face in the legal profession. ALL are part of the larger, more holistic view of what it means to do legal problem solving.

Starting with #1, we have a HUGE access to legal services problem in this country. This is spelled out quite clearly in many places — for a good overview, read the ABA's 2016 Report of the Future of Legal Services. Serving the 80% of people in the U.S. who have a legal need but don't have legal help? And might not even realize they need legal help? This is a level-one problem our profession MUST solve for. We're not doing a good enough job at solving it right now. We need different, better, tools.

And those who we're already serving? Well, they aren't happy, either. Go here and here and here for the latest reports on how well the traditional BigLaw services delivery model is faring. Hint:

It has been a difficult 10 years for law firms in many respects, and looking ahead, significant long-term challenges remain,” said James W. Jones, a senior fellow at the Center for the Study of the Legal Profession and the report's lead author. “Actions that have helped sustain firm financial performance over the past few years, such as expense controls and reducing the equity partner ranks, are not likely to be as effective in the future. Firms need to embrace a longer-term, fundamental shift in the way that they think about their markets, their clients, their services, and their futures.

 

The “2017 Report on the State of the Legal Market” Finds 10 Years of Stagnation Changing the Industry; Says Innovation Key to Law Firm Success

Moving on to #2, it's incumbent upon lawyers to find better ways to solve clients' problems that have a legal component. Clients do not have legal problems in isolation. For 18+ years, I helped my business clients solve business problems that often had a legal component (but not always). Clients of divorce attorneys have personal and/or family and/or financial problems that have a legal component. Perhaps most importantly, with issues of civil liberty involved, we must view clients of criminal defense attorneys has having a larger set of problems, within which the legal problem exists.

Clients from many parts of the legal services spectrum are telling us that we do not do a good job responding holistically to their problems. We often use only our hammer — when the hammer might not be the best (or even appropriate) tool. (Guess what? Not every legal problem requires — or is even best-served — by a purely "legal" solution. Just ask any really good mediator.)

We also tend to work in isolation, focusing solely on "legal" issues instead of taking an integrative approach that more fully considers a client's situation. A classic example here? The rising chorus of general counsel pointing out how little their outside counsel know about the actual business of the companies they represent.

When it comes to being great lawyers, we must add more tools for solving clients' problems with a legal component. And this doesn't even begin to take into account the impact that increasingly sophisticated and effective technology will have on much of the work heretofore done by lawyers.

And #3. This is one of my personal missions. To insure the positive growth and transformation of the legal profession, we MUST do a better job of preparing law students to craft intentional career paths that empower them to both successfully navigate a rapidly changing legal landscape AND participate meaningfully in shaping this landscape's future. Traditional core curriculum courses are not enough. Clinics are not enough. Frankly, not even PoLI (in its current form) is enough.

You don't have to fully embrace that the billable hour is dead, that the traditional law firm model is dying, that technology may soon render many lawyers obsolete, that the market lawyers serve is shrinking, or that the opportunities for associates are declining. But only a luddite will disavow that the business of law has changed for good, and there is only one thing of which we can be certain — it will continue to change and evolve in the face of economic, technological, and other forces.

So how do we prepare future lawyers to enter into this new world? And take an active role in shaping the future for the better? By giving them more, and better, tools than just a hammer. Yes, by teaching them how to think like a lawyer. AND by encouraging them to be endlessly curious. By using pedagogical methods that encourage creativity instead of hampering it. By modeling empathy and embedding it into how and what we teach.

I began this post with an oft-cited Einstein quote, one I've had on my office desk or wall for nearly all of my 18+ years in legal practice. My experience and observation over these nearly two decades continue to confirm that good legal problem solving first and foremost requires legal problem understanding – and that understanding requires much more than performing the traditional legal analysis we are taught in law school. As our world and our profession become increasingly more complex, this becomes even more important.

And this is precisely why the mindsets of human centered design — empathy, creative confidence, learning from failure, embracing ambiguity, optimism, iteration — deserve a place in the law school curriculum and in the toolbox of new lawyers. These mindsets help us dive deeper into the understanding of problems, in ways that the solely "thinking like a lawyer" simply can't, to help us find better, more creative, and more innovative solutions to the challenges that our clients and our profession face.

And this is why I'm teaching a course called Legal Problem Solving. My students will leave this semester having been exposed to the mindsets and tools of human centered design, and it's my hope and belief that they will be better prepared to go forth to more intentionally and successfully shape both their own professional journeys and the course of our profession.

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