May 02, 2018

How Universal Design Principles Can Improve Legal Accessibility

Michael Iseri – May 2, 2018

Legal accessibility is the act of making legal knowledge and services available to the general populace, and it involves making legal information, materials, and tools usable to everyone, including making them available in different languages and to those with disabilities. It is noteworthy that even though the Internet should have every conceivable topic in the year 2018, there is no relevant information on “legal accessibility.” This is one of the few topics that does not exist on Google, Bing, Yahoo, and Wikipedia.

In general, there exist three major design concepts: usable design, universal design, and accessible design. Usable design allows for the “effectiveness, efficiency and satisfaction with which a specified set of users can achieve a specified set of tasks in a particular environment.” Universal design is “the design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.” Accessible design is a design process that takes into account the needs of people with disabilities. Disabilities, Opportunities, Internetworking, and Technology, supra. To summarize, usable design is a design style for a specific group of users (such as attorneys), universal design is a design style to allow almost all people access without specialized design, and accessible design is design style to accommodate disabilities.

Attorneys often use usable design for creating legal information, materials, and tools couched in legal terms and clauses. Usable design may be appropriate if the main audience is other attorneys; yet, attorneys often rely on this design style when communicating to the public. Because of its convoluted legal terms and clauses, this style is not suitable for the public given that nonlawyers have no context or understanding of legal language. This is not legally accessible.

In contrast, attorneys should strive for universal design when presenting to the public (or accessible design when applicable). This means that legal terms and clauses should be simple and clear. If a person gets confused and throws his hands up in the air as a sign of frustration, then that legal information is not based on universal design. Universal design has seven principles for making information, materials, and tools accessible:

  1. Equitable use (provide the same means of use to all users);
  2. Flexibility in use (provide choice in methods of use);
  3. Simple and intuitive use (eliminate unnecessary complexity);
  4. Perceptible information (maximize “legibility” of essential information);
  5. Tolerance for error (provide fail-safe features and information);
  6. Low physical effort (minimize repetitive actions); and
  7. Size and space for approach and use (physical access).

These principles are helpful but not really tailored for what is needed in the legal field. Rather, these seven principles for universal design can be summarized into three major concepts to be applied to the legal field: (1) clarity, (2) visibility, and (3) structure. If followed, these concepts would improve attorney presentation of legal knowledge and services to the public. These three concepts are what make legal information, materials, and tools legally accessible.

To better define these concepts, an example of inaccessibility best shows the importance of legal accessibility. The example below comes from a legal guide found on the State Bar of California’s website for people seeking information about a living trust. Below is an answer that presents contradicting and confusing legal language in response to a question (question 10):

10. Will a living trust help reduce the estate taxes?

No. While a living trust may contain provisions that can postpone, reduce or even eliminate estate taxes, similar provisions could be placed in a will to accomplish the same tax planning.

The author answered “no” to whether a living trust would reduce estate taxes. Yet, this is immediately followed up with a contradictory clause: “a living trust may . . . reduce or even eliminate estate taxes.” This contradiction changes the answer to a “yes” instead of a “no.” Most attorneys are trained to parse legal phrases to determine the true legal syntax, such as “yes means no” and “no means yes” responses. Yet, a person from the general public would likely internalize the answer “no” without then doing the mental gymnastics to understand that the explanation makes the answer a “yes.” As is, the answer is misleading to the public, and it is not legally accessible.

The remainder of this article explores the concepts of (1) clarity, (2) visibility, and (3) structure as components of legal accessibility. After exploring these concepts, we then reexamine the above example to incorporate these concepts and make it a legally accessible response for the public.

Clarity. Clarity is the simplification of language to be clear and concise. When applied to legal accessibility, clarity is achieved by simplifying legal terms and clauses for the public. Avoid convoluted language, implicitly suggestive language, and legal jargon. If presenting information to the public, simplify the information. If a small portion of the public is confused, continue to refine the information. Anticipate what the public would be confused by, and explain it in simple terminology. Even if you are presenting information to other attorneys at a workshop or an event, to a legal boss, or to a judge, still simplify the information. If other attorneys have to put in any effort to determine what is being stated, continue to refine the information.

To achieve clarity in legal information, keep it simple and leave no room for ambiguity.

Visibility. Visibility is the arrangement and surfacing of vital information. In the area of legal accessibility, visibility is presenting legal terms and clauses in plain view and not tucked away. The most important information and critical warnings should be presented up front. Do not bury vital information or recommendations in paragraphs. Moreover, make sure that takeaway points are logically sequenced so that people can easily find what they are seeking. Whether presenting to the public or to other attorneys, have a good understanding of what your audience wants and position that information to be apparent and up front.

The main point for visibility is to stop wasting people’s time by not hiding what they want.

Structure. Structure is arranging information in an easy-to-digest manner through formatting rather than through words and content. In regard to legal accessibility, this concept is to make legal information more accessible without using words. A lot of information can be conveyed innately through proper indentations, bullet points, logical breaks, and so forth. Through structure, an attorney can transform a chunk of legal information to something that can be innately understood at first glance.

Structure is the ability to use a person’s innate ability of scanning to guide a person to where he or she needs to focus.

Incorporating Clarity, Visibility, and Structure to Improve Legal Accessibility
With these three concepts, (1) clarity, (2) visibility, and (3) structure, let us now revisit the example given above to make it better and accessible. Here is the original example:

10. Will a living trust help reduce the estate taxes?

No. While a living trust may contain provisions that can postpone, reduce or even eliminate estate taxes, similar provisions could be placed in a will to accomplish the same tax planning.

Under the concept of clarity, the example should be stripped down and rephrased to avoid the contradictory language, and the Oxford comma should be added. A better way to phrase this would be the following:

10. Will a living trust help reduce the estate taxes?

Yes. A living trust can contain provisions to postpone, reduce, or eliminate estate taxes. Similarly, a will can have these types of provisions to accomplish similar goals for tax planning.

With some minor tweaks, the example becomes much clearer and easier to understand. It also avoids the contradictory and awkward phrasing that the original example had.

The next concept is visibility. Notice that the example is question 10; yet, often people’s first question about trusts is whether a trust would avoid taxes. With that in mind, it would make more sense to position the example earlier in the guide rather than buried it in the middle or near the end. The example should then be the following:

3. Will a living trust help reduce the estate taxes?

Yes. A living trust can contain provisions to postpone, reduce, or eliminate estate taxes. Similarly, a will can have these types of provisions to accomplish similar goals for tax planning.

The only change was to move the question from question 10 to question 3.

Finally, applying the concept of structure to the example would help make the content flow better. Because the material is in a question-and-answer format, it would make sense to indent the answer portion so that there is some visual separation between the question and the answer.

3. Will a living trust help reduce the estate taxes?

Yes. A living trust can contain provisions to postpone, reduce, or eliminate estate taxes. Similarly, a will can have these types of provisions to accomplish similar goals for tax planning.

And that is the final product. Through the concepts of clarity, visibility, and structure, a previously contradictory legal clause is now more accessible to the public.

Conclusion
Legal accessibility and its three concepts—clarity, visibility, and structure—are important to implement as law becomes more available to the public through the Internet and other technology. Through these concepts, an attorney would better be able to convey legal knowledge and services to the public. Using legal accessibility concepts would make information easier to understand, increase a client’s speed and accuracy in committing to legal decisions (what I refer to as the “hesitation element”), and demonstrate an attorney’s mastery of the material. Law itself is complicated, so making it more accessible through legal accessibility should be greatly appreciated and fully embraced.

 

Michael Iseri is a fellowship attorney at the Center for Accessible Technology in California and the sole programmer of a legal artificial intelligence program called Esq. A.I.

Michael Iseri – May 2, 2018