Can legal creativity cultivate better contracts?

“Today’s, the biggest threat to the legal market is not competition by alternative service providers, nor disruption by technological companies. Instead, it is a crisis of imagination. Most legal service providers are unable to reimagine how to deliver legal services, how to serve their customers and how to craft an attractive offer,” stated Tessa Manuello in an article earlier this year.

As a remedy to this crisis of imagination, the french-canadian Manuello has founded the platform Legal Creatives where she teaches legal professionals to tap into their creative potential with techniques borrowed from the arts and humanities. Besides teaching creativity at Université de Sherbrooke in Quebec, and talking legal innovation in The Future of Law Podcast, she tirelessly travels the world with her Legal Creatives masterclasses and hosts online courses to reach a broader audience.

“My focus is on using creativity as a tool to imagine new ways of working, new services and products in law. There is a lot of potential for creativity given that it has not been used so much in this field yet. This is where some lawyers get suspicious because if it has not been used then why should they? If you want to differentiate from others, creativity it is a great opportunity because you are going to stand out,” Manuello tells Legal Tech Weekly.

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The Creative Way of Law

‍A few years back, while living in Paris, Tessa Manuello was working as a deputy counsel, managing cases in the field of arbitration. She did, however, grow frustrated by seeing so many companies getting deceived: “Although arbitration is considered an alternative way to solve disputes and a more innovative mechanism than the traditional court system, I found from my experience that we could do so much better. Arbitrations can be really long, they can be really expensive as well and they are still very complex, so sometimes we had companies that could not afford to sustain the proceedings. I felt we were repeating the same patterns as in the traditional court system,” she recalls.

So, she dropped out and went to explore the completely opposite end of the spectrum by moving to Canada and exploring social justice and education in the day, while learning theatre, improvisation, creative writing in the evening. She eventually trained herself creativity, innovation and leadership skills in Toronto and creative problem-solving in the US, before reaching a synthesis: “I took my legal background to the next level by integrating everything I had learned in the field of creativity. I consolidated my knowledge and discovered that creativity is not exclusively for the artists. We all have this creativity inside of us, even lawyers, we just need to uncover and unleash it,” she explains.    

Manuello defines creativity as a set of skills and a methodology with techniques you can apply to utilise more of your imagination. Through various creative sessions and exercises in spontaneity, she teaches people to enhance their imagination to come up with innovative solutions to the challenges that modern legal professionals face today:

The first challenge is to increase the predictability of costs through new business models. The second is to secure more clarity in the legal process since clients want to participate and engage in the legal process, preferably through the use of technologies. The third challenge her research has identified is a better legal experience and outcome-value for the clients.  

To solve those problems, she works with three criteria for a creative solution; novelty, originality and relevance.

“Creativity is the search for novelty, to allow us to do something different and new, regardless of whatever has been done in the past. Then creativity is about originality since the more unique and original your offer is going to be, the more you can differentiate yourself and attract the right clients.But creativity teaches us also to stay relevant. You do not want to be original for the sake of originality; you need to create products that are relevant for you, the law, the justice and the people,” Manuello explains.

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Reimagining the contract

‍An example of how legal creativity can be applied is to reimagine the way contracts are presented today. Instead of making long, bureaucratic and technical documents, Manuello inspires lawyers to re-design contracts to improve the user-experience so their clients can reach better business outcomes.

Last year, Manuello was invited to speak and trained lawyers at an event on The Future of Contracting in Sweden in which participants came to the realization that contracts were not created for its actual users. In the same line of thought, her online participants at the Academy in jurisdictions as far as Brazil concluded similarly: “We see that contracts are drafted for lawyers by lawyers and for judges to interpret, and not for the parties who are parts in the agreement. Those fairly long contracts, filled with words in black & white fonts are extremely complex for users to understand. This is why we go to court most of the time, because contracts end up being difficult even for lawyers to agree on their interpretation. For users, there is way too much confusion, and so I ask: Who dictates that contracts should be written in such a format?” Manuello elaborates.

Two examples on the creative contract

Lotta Bus, who is a founder and CEO of the legal tech company Sincrly, was one of the lawyers who participated in the event: “I many times worked with legal issues that relate to new problems where no code or precedents exist. Then you need to find an answer based on your own creative mind. Clients have told me “you don’t think and act as a common lawyer, you dare to use your creative mind”. I love to solve complicated legal problems and provide the result in a simplified way so everyone can understand. This has led to that I, together with a software engineer, for the moment focus on developing legal tech tools and other products which make it possible for everyone to solve their own legal issues,” she explains. In their pipeline, they have got a new online platform that allows stakeholders to cooperate in a visually attractive manner using interactive design and video.

Another innovative take on contracts comes from Sarah Fox who is also a member of the Legal Creatives academy. In a fight against paper-based brick-shaped contracts, she has sworn to only create simple contracts in less than 500 words.

“Most normal contracts are full of technical terms, legal phrases and jargon. This means that even if the users did manage to plough their way through the hundreds of pages of small text, they have not got a chance of being able to understand the contracts. It is not just that each clause creates an impenetrable barrier to understanding, but that the whole interplay of clauses, insurances, losses, liabilities, indemnities and so on can be extremely hard to interpret for lawyers, judges and the courts - never mind anyone without significant legal knowledge. The contracts are essentially written by lawyers for lawyers,” she explains to Legal Tech Weekly.

Then she points to the hard facts: “0.22% people read any of the online Terms & Conditions before clicking I agree - surrendering their data at the least or the eldest child (the Herod clause), their immortal soul or whatever unpleasant real clause is inserted.”

To meet the consumer demand she only writes short contracts written in a plain language which create trust with the clients, encourage open communication and data-sharing and which creates a collaborative win-win tool. In this way, her clients can take control of their destinies rather than relying on lawyers.

“Simple contracts require almost no legal knowledge as they are not written in legal or technical terms but in words that anyone, whether in the industry, can understand. They transcend culture, jurisdiction, and intellect. They are about giving access to business tools to everyone - not just the wealthy few who can afford lawyers to translate their business needs into fancy phrasing,” she says, and then elaborates: “I don't expect my simple contracts to change the world, though it would be nice, but I do want it to spark a debate about the real function of contracts and whether those functions are truly served by the tree-destroying paper-chase most businesses currently find themselves mired in. Do we want contracts to help us do business or help lawyers make money?”

To Tessa Manuello these are perfect examples of legal professionals that create new possibilities and fight the crisis of imagination in the legal field, by offering a new customer experience and a new way to deliver legal services, in a more usable way.

“We have these everlasting problems in the legal industry. We know that people don't have access to justice, and it has been like this for decades. We repeat the same strategies, hoping we will get new results. If those strategies worked well, then we would no longer have overloaded courts, and we would no longer see so many people without any legal protection. This is why we need to find new ways at looking at the problems in the industry and new ways to find solutions,” she explains.

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Is legal creativity just another buzzword?

‍While some might believe that legal creativity is just another buzzword in the innovation business, Manuello points to multiple research and reports that show creativity as the number one skill for the future of work, in all industries. “The world is changing at an accelerating pace, and yet the incremental innovations we see in law will not suffice to create the change expected from lawyers by clients.” Manuello wrote in an article just published on Legal Creatives’ blog. She also refers to  several reports establishing that creativity is the most important skills for leaders seeking innovation, such as the 2010 IBM study of 1,500 CEOs and the more recent World Economic Forum’s Future of Jobs Report 2018.

“We just need to know how to be creative. At Legal Creatives, we have been investigating the potential of creativity for law, researching and analyzing how imagination can be activated to better serve the law, professionals, clients and society at large. We have constructed new concepts, built frameworks, developed tools and tested strategies that are all creative and all relevant for the legal field.” Manuello see the results lawyers get using this method, and so since Legal Creativity works, it can’t just be a buzzword.