Design Thinking in the Law

Notes de l'éditeur

1. Presented at the North Carolina Bar Association Annual Meeting in Wilmington, NC on June 23, 2018. Text © 2018 Alix Devendra. All Rights Reserved. Please do not share any part of this presentation without express permission. Stock photos from Adobe Stock, except where otherwise noted.
2. Just to keep you on our toes, I want to start with a little IQ test. Don’t worry, you can keep your answers to yourselves!
3. This test comes to us courtesy of F. Scott Fitzgerald, who once that “the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function. One should, for example, be able to see that things are hopeless and yet be determined to make them otherwise.” So, did you pass? If not, don’t worry. By the end of this talk, each of you will have the tools and inspiration you need to pass Fitzgerald’s test—each of you will leave this room with the determination to make a positive difference in the world. But before we get to the secret recipe, let’s take a moment to remind ourselves of why things seem hopeless.
4. We could start with the access to justice gap. In 2017, the Legal Services Corporation reported that in the past year only 14% of the civil legal problems reported by low-income Americans received adequate legal help. (https://www.lsc.gov/media-center/publications/2017-justice-gap-report)
5. Or we could look at lawyer well-being. The ABA’s Task Force found that around 1 in 5 or 1 in 4 lawyers suffer from anxiety, stress or depression. And possibly more than 1 in 3 of us are problem drinkers. By the way, on the depression statistic, that’s four times the rate for the general public. The Task Force also found that these problems negatively affect our competence and civility. One study found that 40–70% of disciplinary proceedings and malpractice claims involve substance use or depression, and often both. Major depression is associated with impaired executive functioning, including diminished memory, attention, and problem-solving. (http://lawyerwellbeing.net/wp-content/uploads/2017/11/Lawyer-Wellbeing-Report.pdf; https://www.americanbar.org/publications/gp_solo/2015/march-april/out_the_darkness_overcoming_depression_among_lawyers.html)
6. Or we could talk about lawyer integrity, which is also in trouble. In a recent Gallup poll, only 4% of respondents rated the honesty and ethical standards of lawyers as “very high.” As individual members of this profession, we probably all feel at least somewhat hopeless in the face of these numbers. But you’re here today in another capacity as well.
7. You’re here as members of the North Carolina Bar Association. And in your role as bar leaders, these findings may be doubly upsetting because these are the very things you have committed to promoting. So, why do these problems make us feel hopeless?
8. Why do they make us want to do this? Well, they’re complex. They’re ambiguous. There’s no clear “right answer.” In other words, these are “wicked problems.”
9. And no, I did not just invent that term! But the good news is that a method has been developed specifically for solving wicked problems.
10. It’s called design thinking. And so, today, I’m going to teach you how to think like designer. Now, I’m sure some of you are thinking, “Woah, woah, woah, Alix. Hold up. We already spent three years learning how to ‘think like a lawyer.’ And that’s what we do, we practice law. We’re not designers. So why on earth do we have to learn a new way of thinking just to solve issues in our own profession?”
11. Well you don’t have to take my word for it. It was Einstein who said that “we can’t solve problems by using the same kind of thinking we used when we created them.” Now, luckily, it’s not going to take me three years to teach you how to think like a designer. In fact, I think I can squeeze it into the next 15 minutes.
12. Essentially, there are five core attitudes that make up the design thinking mindset.
13. Thinking like a designer means being curious …
14. creative …
15. collaborative …
16. action-oriented …
17. and experimental. I’m going to show you how to cultivate each of these attitudes in yourself, and why that’s so important.
18. Let’s start with curiosity. Curiosity is the key to gaining a deeper understanding of the problem. Not to go overboard with the Einstein quotes, but he did say, “If I had an hour to solve a problem I’d spend 55 minutes thinking about the problem and 5 minutes thinking about solutions.” In other words, we need to understand our problems better. But I realize, it’s not very helpful for me to just tell you to be more curious.
19. To borrow Otto Scharmer’s analogy, that’s kind of like a farmer pointing to a plant and commanding it to “grow!” It doesn’t work like that. Instead the farmer has to cultivate the soil—to provide the plant with the right conditions so that growth naturally happens. Curiosity works the same way. All you have to do is start paying more attention.
20. Turn off the autopilot in your life, and look around. If you can do that, questions will naturally emerge. And it is through asking questions—of ourselves, our colleagues, our clients—that we gain a deeper understanding of what’s really going wrong.
21. Second, we need creativity to turn that knowledge into insight. This one is kind of like curiosity—how do you just “be” more creative? The good news is that we are all born with natural creativity, and even if you don’t feel particularly creative, it is a skill that can be re-learned. How? By simply giving your brain space to do what it wants to do. In other words, you have to let yourself get bored! I swear, I’m not making this up!
22. A researcher in the UK asked students to find creative uses for two Styrofoam cups to test their levels of creativity. (https://www.telegraph.co.uk/news/science/science-news/11492867/Boredom-makes-people-more-creative-claim-psychologists.html)
23. Before the experiment, she asked one group to carry out the boring task of copying phone numbers from the phonebook.
24. She discovered that those who carried out the boring task found far more uses for the cups than the control group! So, if you do the first bit—you cultivate your curiosity and ask lots of questions—then you need to give yourself some time to digest all that information and discover the insights that are hiding below the surface. You may come to find out that there’s an entirely different way to look at the problem.
25. There was a great example of this in the Harvard Business Review last year. There was an office building where the tenants were complaining about the elevator—it was old and slow and they spent a lot of time waiting. If that’s all the information I give you and I ask you to diagnose the problem, you would probably say that the elevator is too slow. And if we frame the problem like that, the solutions are pretty obvious: you could replace the elevator or install a stronger motor. But if I asked you to dig deeper, maybe interview the tenants some more, and then really mull over what they said, you might frame the problem entirely differently: it’s not necessarily that the elevator is too slow, it’s that waiting for the elevator is tiresome. When you look at it that way, a whole new set of potential solutions crops up. You could install mirrors and a hand sanitizer dispenser in the lobby, perhaps play some music—just give the tenants something to do while they wait. These solutions have the added benefit of being a whole lot cheaper than a new elevator. (https://hbr.org/2017/01/are-you-solving-the-right-problems)
26. Third, once you’ve framed the problem, you’ll generate better solutions to it if you collaborate with a diverse team.
27. Yes, our profession has a problem with diversity, and we need to address that. That’s one of those wicked problems we need to be working on. But how can you do a better job of collaborating—starting today? By asking one simple question, “Who’s missing from this conversation?” If you’re working on at issue in your firm, have you talked to everyone who’s affected—partners, associates, paralegals, and admins? If you’re forming a new committee or task force, be intentional about including representatives from as many stakeholder groups as possible. Having a group of people in the room who think differently from each other is a very good thing when you’re brainstorming solutions.
28. Fourth, we need to get over analysis paralysis and just get started. It’s imperative that we “build to think,” that we refine our ideas through action, not just more discussion.
29. When I put a picture of a kid up, it makes sense, right? It’s experiential learning. We have to let our kids try things out for themselves, even though we know they won’t get it right at first. Well, it’s no different for adults. That’s why we do prototyping. Making something tangible quickly, without a ton of time or money having to be invested up front, so you can find out if it’s going to work or not.
30. Last month, the local bar association in Portland, OR held a legal hackathon. My team’s project was to help the county courthouse deal with the flood of self-represented litigants. The courthouse was built in 1904, which causes a lot of problems. The layout isn’t intuitive, the halls are echo-y and crowded, and the court staff are overwhelmed with questions from the public. You can see that the line sometimes goes out the door and around the building. Well, in one day, our hackathon team was able to prototype a solution to address this problem.
31. We uploaded the courthouse floor plans to Google Maps Indoors, which is a free technology. Then we built a simple web app so that someone coming to the courthouse who has a smartphone could figure out what room they need to go to, and navigate directly there without having to ask court staff. The court also has extra iPads on hand because their judges recently switched from iPads to laptops. So the idea is that volunteers such as law students can roam the building with an iPad and if there’s a long line forming, they can help the people in line use the app to figure out if they’re in the right place. Now, is this actually going to work? Are people going to want to use it? I have no idea! But they court is going to do a little pilot to test it out. And if it doesn’t work, it’s not a big deal because we built it for free in one day.
32. And, I just need to point out here that part of the reason we could do this kind of rapid prototyping was that we were a diverse team. We had software developers who knew about the free Google Maps technology and could do the coding. We had court staff who could provide the floor plans and knew about the extra iPads. And some of our team members had personal experiences going in the courthouse and being confused—like one woman who had gone in for a name change and had no idea what department that would be in—is it civil? Family? She had no idea. So that gave us inspiration for the solution.
33. Lastly, by approaching problem-solving as an experiment, designers no longer see failures as failures. Instead, you just ran a test with unexpected results. You can study what happened and tweak your approach accordingly.
34. I read The Power of Habit recently, and it has some wonderful examples of this phenomenon. The basic idea of the book is that we can’t just quit bad habits. Instead, we have to replace the bad habit with a better one. But in order to do that, we have to figure out what triggers the bad habit, and what drives it—what is the pleasurable feeling that we’re subconsciously seeking. The goal is to find a better habit that will provide the same reward. Sounds simple, right? But it’s really hard to do! That’s why we’re all walking around with so many bad habits! But it is possible if we approach it like an experiment.
35. That’s what Eric did. Eric was a smoker. He had tried to quit several times before, but each time his willpower eventually gave out. After reading The Power of Habit, he realized he needed to try a different approach.
36. He started studying himself—looking for when he had a craving for a cigarette. And he figured out that his cue when he got stressed or anxious. His body was looking for calmness and smoking had become his way of relaxing.
37. So first he tried running as a substitute. That worked for a little while, but then it fizzled out.
38. Then he tried going to a sauna, which was a great way to relax, but he couldn’t do it multiple times a day.
39. So one day he decided to meditate. The great thing about meditation was that he could do it anywhere. If he was standing in line or suddenly felt stressed—times he would normally crave a cigarette—he could just close his eyes and take a moment to breathe, and he could feel himself calm down. Studies suggest that this process of experimentation—and failure—is critical in long-term habit change. Smokers often quit and then start smoking again as many as seven times before giving up cigarettes for good. It’s tempting to see those relapses as failures, but what’s really occurring are experiments. Researchers have shown that as smokers quit and then relapse, they begin to achieve a self-awareness about the cues and rewards that drive their smoking patterns.
40. And that’s exactly the attitude we need to have when approaching problem solving. We’re not going to fix everything on the first try. But if we can think of what we’re doing as an experiment, then it’s okay when our proposed solution doesn’t work out as we thought. We can study what happened, try to gather some more insights, and then brainstorm some additional ideas to try next time. That’s what happens when you put these five attitudes all together.
41. They become a process. First, we study the problem by tapping into our awareness and curiosity. Then we reflect on what we’ve learned—and by drawing on our creativity, we may find a way re-frame the problem. By collaborating with a diverse team, we can brainstorm a wider range of possible solutions. Then we devise quick ways to test our ideas, treating the whole thing like an experiment. And if things don’t turn out as planned, we study the situation some more! With this framework, you can start working on the stickiest, most complex problem with confidence that you can move the ball. So, the question is: How do you put this into practice?
42. Well, remember the five tips I gave you: Cultivate curiosity by turning off your autopilot. If you start paying attention, questions will follow. Give yourself space to reflect and get creative. You may uncover insights that cause you to reframe the problem entirely. Bring a diverse group of voices to the table. If you start asking, “who’s missing from this conversation?” you’ll figure out who’s been left out. Aim for action over perfection. As Reid Hoffman said, “If you’re not embarrassed by the first version of your product, you’ve launched too late.” And lastly, test your idea repeatedly and learn from the early “failures”—it’s all part of the process. And if this still feels a bit daunting, keep in mind that you don’t need to tackle the well-being of the entire profession right off the bat. You can start small. I just spent the last two days with a Big Law partner in South Carolina and we used this method to tackle problems she was having in her individual practice. You can do the same. Pick a problem in your life and run it through this cycle. You can do it as a sprint, for example block of one afternoon to run through all the steps. Or give yourself a week—Monday for gathering data, Tuesday for reflecting, etc.
43. If that feels like a bit too much, then consider checking one of your local Meetup groups. The North Carolina legal hackers group meets in Charlotte and the Carolina Design Thinkers group meets in the Raleigh area. (https://www.meetup.com/NC-Legal-Hackers/; https://www.meetup.com/Carolinas-Innovators-Design-Thinkers/)
44. If you’re looking for an even easier way to dip your toe in I invite you to join my next virtual office hours, which happen to be this coming Monday at noon Eastern. You can pop in for a few minutes to ask a specific question—like ‘what the heck is Meetup?’—or you can stay for the whole hour and be a part of the conversation.
45. Whatever you choose to do, just remember that when you start approaching problems with this attitude, it’s impossible for things not to get better. Because design is inherently optimistic. That is its power. Thank you.