A lawyer may think that her most important task is to exclude any legal liability of her client. But that is not what our role is about.
Our task as lawyers is to support the business of our clients. That requires us to understand what that business is. In any business you have to take responsibility for your product or service. In order to take such responsibility you have to understand what the core of your product or service is. You have to understand how to manage the risk that is inherent to your product or that you are willing to take.
We have all experienced situations, where a counterparty comes to the negotiation table without any intention of entering into a fair deal. That may provoke us. It’s easy to get annoyed when your counterparty fails to acknowledge your reasonable interests.
As a consumer we may react negatively to endless limitations of liability or to legal mumbo jumbo, that we do not understand. We may even end up choosing another product or service.
The legal terms and conditions applicable to products and services are a part of the product or service itself.
Here we are at the core of the concept of legal design. Legal design focuses on the user-friendliness of law. It is e.g. about drafting contractual terms so that the intended reader understands them and is willing to accept them, instead of reacting negatively to them.
Good terms and conditions reflect reality, they are unambiguous and easy to understand. They are written in a way that enforces the positive image of the product, service or the seller.
The rise of legal design challenges us lawyers to look at the bigger picture. What is our task? Is it merely to minimize all legal exposure or is it to support our clients in understanding the legal risks involved, helping the client to choose which risks to take and how to manage them without making their business proposal unattractive?
In a straight-forward quest of minimizing legal risks, we lawyers may cause harm to the business. The Financial Times recently published an article where experts on crisis communication said that lawyers, in their effort to avoid legal exposure can cause their clients serious damage when assisting in crisis communication.
Legal advice is not rendered in a vacum. Good advice supports your products and services in a sustainable way. The lively discussion around legal design reminds us lawyers about our task. It is to support your business, to give you insightful and sustainable advice, to help you to manage risk, and to think ahead for you.