Where access to law begins — legal design in legislation

Jurata's mission is to improve access to justice. To this end, we are constantly working on our platform, which makes it easier for law seekers to access lawyers. But has enough already been done or are there other elements? Jurata met Dr. iur. Jlona Caduff, Legal Counsel + Legal Designer and Founder and Owner of Legal by Design AG, talked about this exciting question. Since 2019, she has been working on the relatively young, but rapidly gaining attention worldwide, legal design approach.

Jlona, could you tell us what Legal Design is all about?

The aim of legal design is to make legal topics understandable and appealing to the needs of users, i.e. to design the information in terms of content, visual, linguistic and “user-centered”.

What does “Access to Justice” mean to you personally and where do you see the relevance of legal design in legislation?

For me, Access to Justice has 3 pillars: The claim stands and falls first of all with the first pillar: Protection and justice for all, in particular, of course, the protection of human rights and the protection of minorities.

One second pillar forms the enforceability of these claims: access to courts and authorities as well as professional and financially sustainable support for law seekers in enforcing their rights.

A lot is being done in Switzerland on these two topics and I think we're doing reasonably well — especially compared to certain other countries, of course. New companies and business models are constantly emerging, which question the previous services and cost factors of professional legal support. Just think of legal services for less than CHF 100 per hour, “step-in” legal advice shops and the numerous platforms where you can download templates and contract templates for little money.

That's true, there is a lot going on right now and we at Jurata also want to set impetus in the future, for example in the area of cost transparency — but where do you still see gaps in the system in Switzerland?

For me, Access to Justice includes another third pillar: It starts there that my elderly, spiritually but very fit neighbor can find out as independently and easily as possible what she should do in her will so that her last will can actually be met. Especially in simple family and financial cases, as is the case with her.

For me, Access to Justice also means that a company must be able to understand the basic data protection requirements and implement them even without an internal legal or compliance department or high external consulting costs.

And, of course, that contract concluders understand what they sign and why and with what consequences.

In my opinion, this pillar is the biggest problem today, and we still need to work on that. And this is where legal design can contribute to the solution.

But isn't it the task of lawyers to inform and advise law seekers about the content of laws and contracts?

In complex cases, of course. If I want to build a house, I need architects, structural engineers, building managers, electricians, etc. But if I have a bathroom, I don't want to have to call the sanitary shop every time to be able to take a shower.

In my opinion, it is in the best interest of companies to make access to contracts and instructions as independent, understandable and appealing as possible for their addressees — especially in times when customer and employee satisfaction and compliance issues (supposedly) play such an important role.

And what does that mean for drafting laws?

You can have different opinions about this. Everyone must obey laws, that much is clear. But the decisive questions are probably: Should and can laws serve directly as reference works to instruct “citizens”? Or are they aimed exclusively at lawyers because our complicated legal system and the interplay of standards can only be understood with legal education anyway? Or are laws primarily even just documentation of the content results of our (political) legislative processes?

What is your opinion about this?

The answer is not simple — it is a combination of all three functions with corresponding conflicting objectives and compromises. But when I look at our laws and all the problems with their interpretation and application, I am not sure whether such compromise solutions are appropriate to meet the various requirements.

In my opinion, when drafting laws aimed at the broad masses of the population, the needs of their addressees should be given a much higher weighting than is the case today. When it comes to very specific topics, which are only consulted and applied by a few specialists anyway, I could imagine a deeper bar.

But isn't it clear that all laws must be directed primarily at citizens who are not legally trained?

Yes, that is basically the case. The Federal Chancellery's website also expressly states that legislation can only have its effect if it is understood by the persons who must apply the regulations, which is why they should be close to the citizens, transparent and understandable. But I have the impression that this requirement is not being met today or is only being met in part.

What do you think is the reason for that?

As mentioned, I think that the different functions, conflicting goals and the need for compromises contribute significantly to this.

It is also questionable whether legal rules that must apply to an undetermined group of persons and a variety of different cases can serve as an instructional work and can serve as a reference work.

Another question is whether the organization and legislative processes in Switzerland make it possible or at best make it more difficult to meet this requirement. The Federal Administration does have professional law editors who uncover substantive and systematic contradictions in the drafts and ensure linguistic clarity. But given the number of legislative texts, scarce resources and the tight leeway resulting from the political opinion-forming process, their options are probably limited.

In your opinion, would purely linguistic improvements be enough?

No, of course not. This also includes finding the information they are looking for, allowing law seekers to navigate through the topics sensibly, in context and from the user's point of view, and that the information is organized and presented using the most appropriate means. Legal design, as I understand and apply it, comprises information and communication design, which goes much further than just language tools.

During our research, we came across your very illustrative example of a reformulation of the profiling provision in the new data protection law. Wouldn't such language adjustments already help a great many law seekers?

These are not primarily colloquial changes; the wording is virtually identical. This simple example shows that we have a lot more tools in our bag of tricks than just language. Here, for example, I separated different categories of information, created a visual hierarchy, installed optical filters and used a list format. As information designers, we must learn to make information processing as easy as possible for the addressees and to make optimal use of the resources available to us.

It's exciting. If we set aside a more comprehensive system change in our legislation, which we will probably not see any time soon — if at all —: In your opinion, what could be improved in the current system?

There are various approaches to this.

Laws are published online and freely accessible. But the search, navigation and orientation for law seekers are still a long way from being truly user-friendly. Someone who is not legally trained has little chance of even finding the laws and regulations relevant to their questions.

Coming back to my neighbor's example: The keyword search “Testament” shows 357 hits, most of which are irrelevant international agreements for her purpose — seriously, how is she supposed to find her way around them?

Or do we think of a product manager in an IT company who wants to develop, produce and sell their service in compliance with data protection regulations: Although they will find the Data Protection Act, they will only understand in part what they actually have to do, even after careful study.

Isn't another problem that legislative concepts are often already very complicated?

Definitely The concepts are the result of political processes, diverging interests and corresponding compromises. On this basis, it is difficult to create concepts that are simple, understandable and manageable for their addressees.

It is therefore all the more important to invest in the design of complicated concepts tailored to the target audience. It would be worth trying to present certain topics visually and graphically. I haven't seen any guidelines that would prohibit such a thing. Even a somewhat more user-friendly layout and visual guidance for readers could improve accessibility. Or, for example, ensure the visibility of legal definitions where they are used effectively.

And if none of this was possible?

In addition to the official legal texts, “decoding” with parallel processing of the most important elements could be provided in an understandable and appealing form, as is currently being done in corona topics. I could imagine that over time, this could even lead to a kind of “feedback” towards simplifying the conceptual, structural and linguistic design of our formal legislation.

Many good approaches — and how could this third pillar of the access to justice claim be brought to life in legislation now? As the flag bearer of the legal design theme in Switzerland, how do you see your role in it?

Do you expect me to address the legal design issue in legislation? Of course, it would be extremely exciting to make a difference in legislation as well — but I'm afraid that would be a bigger lobbying task that would require players with greater weight than me. But even in a corporate environment that can be influenced much more directly and much more quickly, there is still a lot that can be done to improve accessibility to legal topics, and this is also where we are at the very beginning.

Very good — we too will stubbornly pursue our mission of a better and wider access to justice. One last question at the end: How did things continue with your neighbor?

I had printed out the relevant articles of law on inheritance law and a leaflet on the difference between inheritance and legacy. A few days later she had brought me a box of chocolates with a card, but she only thanked me for the “very useful” leaflet — I think that says it all...

Yes, it's thought-provoking. Thank you very much for the interesting conversation and wish you continued fun and success along the way! And for all interested readers, we provide the Legal by Design AG website To the heart, where you can find further information and inspiration on the subject of legal design.

The interview was conducted by Luca Fábián.

The original text was translated from german to english by machine translation.