Design and Legal Documents

Citizens are frequently asked to make commitments by signing contracts and legal documents that frequently contain phraseology and jargon (sometimes called legalese) that highly-educated citizens often do not understand. In recent years, human factors professionals have become intimately concerned with the design of product-related documentation and safety communications (e.g., warnings), and through research have offered ways to improve these materials. However, there is apparently no human factors research on the design and evaluation of legal contracts and other similar documents. The purpose of the present research was to begin to assess some of the factors related to people's reading and understanding of legal documents. Study 1 examined the types of legal documents that people sign, how often they sign them, how carefully they read them, and whether they understand them. Ninety-two individuals were asked to complete a survey addressing these issues. While it was reported that the contracts were read moderately carefully and were understood moderately well, the levels were not as high as one would expect given the importance of the documents and the education level of the participants in this study (who had, on average, approximately two years of college). Also, 96% of the sample believed that legal documents could be improved and provided specific suggestions on how this might be accomplished. In Study 2, 32 participants rated the set of potential improvements to legal documents that had been suggested by Study 1's participants. The results confirmed the first study's pattern of findings. Implications for average citizens' lack of comprehension of contracts and other legal documents are discussed with a specific focus on the role research might have on their improvement.

Полная версия статьи доступна бесплатно на английском языке: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3447215

Статья посвящена юридическому дизайну, или Legal Design, который по сути является методикой творческого решения юридических задач. Эта методика получает все большее распространение с развитием юридических технологий (Legal Tech), повышающих эффективность работы юриста (агрегаторы, самообучающиеся алгоритмы, децентрализованные инструменты и т.п.). Поскольку разработчики новых продуктов используют методики дизайн-мышления (UX/UI-дизайн, прототипирование, отработка гипотез, масштабирование), дизайн-мышление постепенно проникает и в юридическую среду.

В начале работы над статьей я стоял перед выбором: написать ее с применением методов дизайн-мышления (клиентоориентированность, визуализация, упрощение) или же замаскировать содержание под слоем наукообразной терминологии и ссылками на работы по менеджменту и психологии бихевиоризма. Я выбрал первый вариант в полном соответствии с философией Legal Design и надеюсь, что читатели это оценят.

This article is dedicated to the notion of "Legal Design" which generally applies to creative approaches to legal tasks. The method has spread widely with the development of legal technologies (legal tech) which improve the efficiency of everyday legal jobs (through aggregators, machine learning algorithms, distributed instruments. etc.). As developers of the new products must use design thinking (UX/UI design, prototyping, a/b testing, scaling) this approach is also being gradually adopted by the legal community.

When I started to write this article, I faced a dilemma: either to put it together using legal design methods (e.g. client-oriented approach, visualizations, simplifications) or mask the content under layers of pseudo-scientific jargon and sophisticated citations. I've chosen the first option in full accordance with Legal Design philosophy and I hope that readers find it useful.

The last two decades have seen law emerge online. This development has engaged computer scientists and web designers in communicating law. Recently, serious work has begun on visualizing contract clauses, generating cooperation between designers, computer scientists, business people, lawyers and others. New insights arise from such cross disciplinary collaborations. Each discipline provides theoretical insights as to how legal design and communication might be approached. More profoundly each has the potential to recast relationships – what does it mean for the 'power' of law makers to be exercised in the context of such paradigms? How do such insights enable us to reconsider the role of lawyers: the traditional custodians of legal rules? We examine these questions from a theoretical viewpoint, and reflect on our own cross-disciplinary collaboration in the creation of a proof-of-concept tool for automation of contract visualization.

A short report of my contribution to a working group set up by the Good Law initiative in 2013. Since they have been accessible online, Acts of Parliament are accessed by large numbers of people – but they are hard to read and interpret. It's not feasible to redraft existing Acts in clearer language, so my contribution was to demonstrate how better typography and layout might make worthwhile improvements to the reader's experience.

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Abstract

How many times have we checked that box without reading the Terms of the Service (ToS)? According to the Eurobarometer Special 447 on online platforms (2016),we are not an exception since this attitude towards ToSis common among Europeans (56%).

Despite mandated disclosures are the backbone of the EU consumer protection, very few users pay attention to the information that is provided to them in their online experience.

Several cognitive studies explain the reasons of such a behaviour: ToS are often long, badly written, and full of legal jargon; at the same time, individuals often suffer several forms of bias and degrees of illiteracy. Therefore, some users may find quite hard to read and fully comprehend the basic conditions of the agreement and/or its legal consequences(such as the identity of the counterparty, the rights and remedies available, the allocation of responsibilities, the fairness of the clauses). Other users, instead, may decide to “click” without reading because of the impossibility to negotiate those terms.

Therefore, the current state of implementation of the information duties as well as the fact that the real consumers are different from the rational one (envisaged in consumer protection legislation) are the two main reasons why the so-called information paradigm is failing its policy goal.

My research hypothesis is that smart disclosure mechanisms may help to fix this failure. In the poster, I will present the theoretical background and the preliminary results of the “Awareness by design app”, developed within the project “The Internet of Platforms: an empirical study on private ordering and consumer protection in the sharing economy”.

The methodology for this research is based on legal design, an innovative approach that combines behavioural studies, technology and design to solve legal problems. The proposed app will enhance the information users receive from and about the platform, thanks to visualization and the combination of two different behavioural strategies: labels and ratings. On the one hand, the app will inform the user about the key conditions of the platform’s terms through icons and short texts; on the other hand, the app will provide a score system to rate the quality of the conditions. The research is based on the empirical analysis of a representative set of digital platforms operating in three different sectors (transportation, accommodation, food) and the app is being tested in Brussels.

For the first time in the history of European data protection law, the use of visualizations and especially of icons is explicitly suggested as a way to improve the comprehensibility of the information about data handling practices provided to the data subjects, which plays a crucial role to obtain informed consent. Privacy icon sets have already been developed, but they differ in the kinds of information they depict and in the perspectives they embed. Moreover, they have not met widespread adoption, one reasons being that research has shown that possibility of misinterpretation of these symbols exist. Our research relies on legal Semantic Web technologies and on principles drawn from legal design and Human Computer Interaction to propose visualizations of privacy policies and consent forms. The final aim is to enhance the communication of data practices to users and to support their decision about whether to give or withhold consent.

Abstract

The proactive law approach has brought attention to the fact that legal function is not the only function of the contract, and lawyers are not the only users of commercial contracts. However, a contract is often seen just as a piece of legal writing used by lawyers in case of litigation. Such interpretation is primarily caused by user-unfriendly contract language and format. The majority of managers are reluctant to work with classical commercial contracts: they are lengthy and difficult to read and understand documents. Several studies have indicated that the new approaches to contract drafting that consider different users of contracts, but not just lawyers, have a potential to influence the performance of commercial contracts significantly by changing the way the contracts are designed. The existing templates and forms should be redrafted to produce contracts that are user-centered and usable – good contracts.

Despite the proven necessity of changing the traditional look and feel of commercial contracts, there is no defined methodological framework that could be used to draft better contracts and to change the existing ones in order to make them more relevant to managers and, therefore, to perform better. In the area of contract design it is hardly possible to find some resources that would offer a set of guidelines or a checklist for contract drafters on how to draft (or redraft) a commercial contract in such a way that the document becomes visually appealing, the needed information is quickly found and is easier to comprehend. Various aspects of contract design are covered within different sources from different fields. At the same time, already quite developed are areas of information and knowledge design that can offer a number of useful techniques that can be used in the contract drafting procedure.

The following paper aims to gather useful methods and tools for commercial contract drafters. Three main groups of methods that are being analyzed are page features, typography and highlighting. In every group specific practical techniques are discussed in detail, providing a methodological framework that can be used to enhance the usability of commercial contracts. Based on the latest research in the area of contract simplification and gathering information from related disciplines, it could serve as a checklist for academia, lawyers and businessmen, and bring us closer to developing a new mindset of contract users, where contract is used not only in litigation, but also as a important tool for communication, managing risks and other managerial functions.

Citation recommendation: Tsygankova, Tetiana, Design of good commercial contracts – Practical tools for contract drafters. In: Schweighofer/Kummer/Hötzendorfer (Eds.), Networks. Proceedings of the 19th Legal Informatics Symposium IRIS 2016, [email protected], Wien 2016, p. 404-414.

People are frequently asked to make commitment s by signing contract s, consent forms and other legal documents. Although it is prudent to read these forms carefully, people sometimes do not do so. The present research sought to assess some of the factors related to the usability of legal documents. In study 1, participants reported that they had signed a variety of legal documents that they did not fully read or under stand. They also identified characteristics that hinder understanding and offered suggestions for improvement. In study 2, another group of participants rated those characteristics and confirmed the first study' s findings. Study 3 measured the effects of three different resear ch parti cipati on consent forms: conventional 'legalistic', improved , and one-line (control). Results showed that the improved form significantly enhanced comprehension compared to the conventional form and both were higher than the control. Even though comprehension with the conventional legalistic consent form was poor, all but one person signed it, agreeing to parti cipate in a potentially risky activity. However , given the improved form, participants tended to take advant age of a stated option of doin g a less risky activity. Study 4 found th at consent form comprehen sion was greater when: (a) the form a ppeared to be more informal as compared to more official looking; (b) there was less time pressure compared to greater time pressure; and (c) there was an accompanying oral recitation of the consent form. Implications of these results are discussed.