Design Thinking: Try, Try Again

Law firms have begun to adopt the kind of trial-and-error thinking prevalent in the tech industry. But accepting risk as part of doing business will be a tough sell for professionals trained to avoid risk.
Design Thinking: Try, Try Again
LAW FIRMS, DESPITE THE ENTRENCHED conservative culture in which they operate, are beginning to adopt the kind of iterative thinking that has been so successful for design firms and, increasingly, technology companies. One such process is called “design thinking” — also known as “human-centred design” — an approach that, at its core, is about structured problem-solving with a design flair.

It’s a multi-step process that, to be successful, demands resilience and a willingness to retrace your steps. Technology lawyer Matthew Peters at McCarthy Tétrault LLP says that, with design thinking, you prototype the solution, you build certain elements of it, then you go back out to the client and say, “Is this something that would solve your problem?” And often, he says, after you pilot the solution with the client, you go back to the drawing board, literally, for some aspects that might not have hit the mark.

Ask any successful designer about their processes, and they’ll use words like empathy, experimentation, exploration, consultation and, yes, even phrases such as “start over,” as this part of the design simply doesn’t work for the end user. The word “failure” isn’t in their lexicon.

On the other hand, many lawyers, when asked about embracing an iterative process that tolerates setbacks, admit to a level of discomfort. Even the risk of some sort of failure doesn’t sit well with many lawyers. After all, clients retain lawyers and look to their law firms to advise them on the correct legal strategy — not to pitch ideas about how to approach the issue. So right from the get-go, one of the inherent challenges in applying design thinking in the law firm context is the element of risk.

Peters says this process can be hard for lawyers “because by design we want to get everything 100-per-cent right, and the idea — which is integral to design thinking — that you’re going to do something and try it out, and it may not work, is the antithesis of how lawyers like to think.”

Looking forward, though, Peters sees great potential for design thinking in the legal profession, as the industry moves to embrace new innovation, in part, by introducing new ways of problem-solving and processes gleaned from other industries and sectors. He sees design thinking as a competitive tool where lawyers build a better solution for clients by thinking of the process as “trial and improve” as opposed to “trial and error.”


Lorne Sossin, Dean of Osgoode Hall Law School, says the systems we have now in both courts and law firms were all developed by and for lawyers.

Just consider what plaintiffs and defendants have to face as they engage with the court system: “The reason that we have courts that look the way they do, that have the procedures they have — from the gowns, to the Rules of Civil Procedure, to the form, to the language, to the whole methodology of how we accept evidence — everything is designed for lawyers,” says Sossin. “And it was always intended to be a place for lawyers.”

Design thinking really starts from the opposite premise — that legal services and courts should be designed by and for users. Lawyers who can adapt to this thinking will thrive, he says, but that doesn’t mean they’re going to be the centre of this universe in the way they have been in the previous models.

“Law firms, if we’re being honest, tend to be centred on the lawyer rather than the client,” says Jordan Furlong, a legal market analyst and principal with Law21 in Ottawa. “The workflow, the billing and pricing, the overall accessibility of law firms, are all built around the needs and conveniences of lawyers.” A law firm’s users are its clients, and the experiences of those users constitute the firm’s design. This presents a problem for lawyers, says Furlong, because “few lawyers ever go out and hire a law firm. They just find someone else in their own firm, or they look up a friend or classmate from law school, and get them to do the work.”

But no lawyer, says Furlong, hires his or her firm from the outside, the way a client would. “Have you ever tried to use your own law firm for a legal service? What’s that experience like? Hardly any lawyer can answer that.” Furlong suggests bringing in some of your firm’s “users” for a face-to-face meeting and asking them about their experience with the firm — not just the outcome they achieved, but the process by which the outcome was reached. What worked well, and what didn’t?


Integrating new voices, new techniques and processes from outside the legal profession is starting to gain credence. There’s a growing acceptance by lawyers, says Furlong, “that we need other perspectives and other types of expertise integrated into our law firms, because our traditional skill sets and knowledge base have reached the limit of how much they can help us here.”

Professionals trained in design thinking, he says, are already being taken seriously at competitors like Deloitte and Ernst & Young. And they’re bound to make their mark at potential future competitors like Amazon or Google.

“If I’m in the business of selling legal services, these are the companies on whom I have a long-term eye,” he says, “because they’re the ones that are going to represent competition of a different type than I’m used to. We know how to compete against other law firms; we don’t know how to compete against someone new.”

He says lawyers don’t tend to think in terms of design and process and structure, because they’ve never been trained that way. The good news is that law firms are becoming more open to those who do.

At Blake, Cassels & Graydon LLP, the firm views design thinking as a creative and iterative way to solve problems and improve products and services, says Carla Swansburg, Director of Professional Development, Pricing and Knowledge Services. One of the firm’s great strengths in the design-thinking process, says Swansburg, is that its lawyers and professional staff come to the firm with incredible diversity of backgrounds, experiences and perspectives.

By finding ways to tap into that diversity and “unlock the ideas and experience from backgrounds like technology, engineering, pharmacy and creative arts, we generate better ideas and results. In fact, just by getting a great mix of people in the room and allowing them to flex their skills beyond the practice of law, we can improve how we work and design better platforms and systems,” she says.


Last year, Marie Bernard, newly minted Europe Director of Knowledge and Innovation for Dentons LLP, was tasked with building a new intranet system for the firm’s European offices. Given the variety of cultures and approaches across the firm’s European territory — extending from Spain to Kazakhstan — there was no way to implement a one-size-fits-all approach. As a result, Bernard decided to do something innovative. She introduced the design-thinking process to the firm’s 1,600 lawyers and support staff across Europe.

The repeatable process begins with empathy for the end user’s needs; moves on to exploring creative solutions through brainstorming and consultation; then iterates possible solutions with the end user(s); and returns, finally, to exploring new solutions as many times as necessary. Moving back to the “exploring solutions” phase is not seen as failure, but progress toward an end goal.

In the consultation phase, Bernard and her team let participants identify their pain points, declare what they were happy with in the existing intranet, and introduce ideas they had heard about from other intranets, so as to gain a perspective from outside the legal world.

Throughout the open consultation, the team gathered more than 200 responses. Through continuous consultation, exploration and experimentation, these were eventually distilled to 13 ideas, which are now in the implementation stage.


Design thinking in professional services doesn’t have the glamour of product design, says Kate Simpson, National Director of Knowledge Management at Bennett Jones LLP. “If you’re creating a new iPhone or iPod, it’s really clear about how you might use design thinking. It’s really easy to see what the outcomes of that process might be. But with services and service design, as it’s called, it’s about the process rather than creating something new and shiny.” And, just as product design starts from a premise of the whole customer experience, being client-centric is morphing from the consideration of purely legal solutions to the whole client experience.

“When I think about my version of design thinking, it’s not just about the legal services in and of itself,” says Peters. Rather, the process needs to extend from the moment the client calls in to reception or steps off the elevator. As he sees it, it’s about “the whole service and experience for the client.

“A lot of people say, ‘How are we going to redesign the legal-services experience, but when we think that narrowly, we risk having our lunch eaten by competitors like the large accounting firms. Because they’re not thinking about, ‘How do we create a better audit experience?’ They are stepping back and saying, ‘What about client problem-solving?’ I think it’s equally important for us in the legal profession. Clearly we’re lawyers, but how do we solve these problems that clients have?”

With design thinking, you’re using design principles to improve that experience, says Furlong. “Figure out all the points of contact that a client — more accurately, a ‘user’ or a ‘customer’ — experiences when interacting with your firm. Who does the client deal with? How did those dealings go? How did the person feel after dealing with these points of contact?”

Not only how did the person feel, but did they get what they wanted and needed, which is the question at the heart of the design-thinking process. If the answer is no, what exploration is required and how can new solutions be tested?

Suzanne Wood, National Director of Legal Project Management at Norton Rose Fulbright Canada LLP, recalls a recent situation where design thinking played an integral role in developing a solution for a client. On a routine monthly update call, one member of the legal project management team discovered, when speaking with a client’s finance lead, that the company was facing ga unique challenge.

As it turned out, the client’s finance team didn’t have a legal background and yet they needed to assess, monitor and track legal spend. Subsequent brainstorming about the nature of the problem, possible solutions, and how to improve the process to make it easier for the client’s team resulted in a jointly developed solution to fill the finance team’s knowledge gap.

Norton Rose Fulbright then hosted a webinar, which was presented by one of the firm’s lawyers and a member of its legal project management team. The webinar, recalls Wood, outlined civil-litigation procedures in a particular jurisdiction. “This allowed the finance team to better understand the context for the budgets they were being asked to monitor. Their finance team now knows who to call if there are issues, and there is a smoother process for our client internally as well, which the in-house lawyers appreciate.”

Since that initial meeting, Wood says members of her team have spoken with a number of other clients’ finance teams who have expressed similar concerns. ”Even though we are still in the ideation phase, working with clients to brainstorm possible solutions, we have seen the benefits of human-centred design. Engaging with people throughout our client’s organization helps us to better understand, respond to, and develop solutions to meet their needs,” she says.


Last February, Osler, Hoskin & Harcourt LLP held a joint client/lawyer hackathon session, the aim of which was to use the design-thinking approach to focus on empathy and push to solve real problems that are causing stakeholders real pain.

Held at Osler’s Toronto offices, the event included 40 Osler lawyers, support personnel and clients who broke into small groups of six or seven, recalls Nathaniel Lipkus, an intellectual property lawyer who attended. In following the design-thinking process, Lipkus says each participant first identified one frustrating work experience, and then each group picked one person’s experience to identify a larger problem, as well as who might care about it and why.

“We then used these insights to create holistic solutions targeted at stakeholders’ most important concerns. The teams have followed up, working with Osler’s innovation team to incorporate the solutions into our own firm practices.”

Terrence Burgoyne, a corporate partner and head of Osler’s practice management and innovation group, describes the hackathon with an analogy: “A lot of people think of Big Law as sort of ivy-covered, and we can think of a hackathon as hacking away at some of that ivy to let in different light.”

As for nomenclature, Burgoyne is uncomfortable with the term “design thinking.” He feels the core of the process — brainstorming among lawyers and, often, with clients — is not new. “What’s changing is, we’re bringing a broader application of that technique as opposed to thinking, ‘Here’s the legal issue that we need to solve for the client.’”

Lawyers hear repeatedly from clients that understanding their business is one of the most important elements in the relationship, adds Burgoyne. “It involves trying to understand their pain points, what keeps them up at night, what would make their lives easier and better.”

And that, he says, includes elements of the design process — “asking yourself where and what milestones have gotten us to this point and then going further to ask, ‘What milestones can you visualize that, if we were looking back 10 years from now, we believe will get us there?’”

Asked what he learned from the hackathon and its focus on exploration, iteration and experimentation, Lipkus says he came away with a greater appreciation that, if you can engage a client on what is truly important, “I think they have all the time in the world for those conversations.”

He’s not troubled about clients perceiving flawed ideas as failures. “If lawyers aren’t learning from their mistakes, they’re never going to be able to improve, and that’s part of the culture of innovation that is at odds with the culture of lawyering, and whoever does this the best is going to be in a position to succeed,” he says.

The big question for Lipkus? “What I learned from the design-thinking aspects of the hackathon that was most powerful, from a big firm perspective, is that we need to figure out ‘how do you actually learn to embrace failure in a way that doesn’t compromise your brand?’ If you can solve that problem, then the sky’s the limit.”

Bev Cline is a freelance business and legal-affairs writer in Toronto.