In this post I set out what a classic legal judgement, Donoghue v. Stevenson, looks like through the modern lens of legal and service design. The design tools, user personas and journey mapping, have the potential to provide students of the law a richer appreciation of the litigants and lawyers involved in a dispute, how a dispute grows and how they may be avoided. Whilst they will not replace traditional legal education aimed at the crucial task of mastering the legal principles derived from caselaw, they are an innovative and creative way to supplement classroom activity and convey a richer understanding of legal practice.
Snail in the Bottle
Donoghue v Stevenson  UKHL 100, the ‘snail in the bottle’ case, is a landmark decision of English law. It outlined the principle of duty of care and is the basis of the modern law of negligence. The facts of Ms Donoghue’s encounter with the snail in the bottle, her subsequent illness and Lord Atkins’ famous ratio can be found in any introductory legal text and taught to all first year tort students.
But, like all cases, the judgement was not produced in a vacuum crafted only by the ‘facts’ of a case. It came into being through the actions of determined litigants, confident and confidence-inspiring solicitors, financial resources and, in their absence, financial pleas. It was played out by a cast of individuals with their own stresses, frustrations and motivations. It was only when the money, motivations, people and luck converged, that we got the famous judgement.
Personas, or user profiles, are pillars of legal design. They are the perfect tool for bringing the characters of a case to life. I have imagined how these personas might read for the Snail in the Bottle case:
May Donoghue, a poor but resolute shop assistant, just wanted some recompense for the few weeks she spent violently ill after finding a decomposing snail in her ginger beer. She happened to stumble upon the one lawyer in Scotland who has the know-how and the gall to run the case to the highest court in the land. But did she want to spend 5 years running between courts for a measly £200? Did signing an affidavit pleading for an audience as a ‘pauper’ puncture her pride? Did she ask for the fame that followed her?
Meanwhile, old David Stevenson, who just wanted to run his business lawfully, make a good product and be part of his community. David was following what had forever been good law, which only three weeks earlier had been vindicated in a superior court. He was then sued, dragged through five years of litigation and died of a heart-attack before it was resolved, leaving a messy lawsuit for his kids to clean up.
Walter Leechman was May’s solicitor. A big man around town. A city councillor. He has a sharp eye for business and opportunity. Carrying a grudge fresh off a defeat in Mull v. AG Barr, and perhaps uniquely placed to see the opportunity that May’s facts presented to run his point up to the House of Lords. Had he told her how long her case would take? Had he disclosed to her that he might be looking for personal vindication? But he also ran the case pro bono for years, and convinced his friends at the bar to do so too. Would another solicitor have done likewise?
So we have our characters. Now for the plot. What did their journey to, and from, the House of Lords look like? We can take a look at a journey map to find out.
A journey map is typically used to plot a customer’s interaction with a service provider. Different variables can be graphed on top of the journey, such as customer emotion or satisfaction. But it can also be used to plot a litigant’s journey, from the original incident, to filing proceedings, through the appeals, judgement and beyond. Below is May’s journey (in yellow) mapped on her emotional state. Also graphed for comparison, in orange, is David’s emotional state.
The journey continues into the mid-1930s:
This journey maps illustrates a few matters.
First and most readily apparent, is that the journey took a long time – over five years in fact. It did not even end at the House of Lords, but was remitted and finally settled with an agreement for 200 pounds with Stevenson’s estate, following his death in 1932. The length of the journey may seem obvious for a seasoned lawyer. But it is worth reminding students especially that to run a case to the highest court, and then back down for remittance, and then to a settlement or enforcement, consumes years of the protagonists lives.
Second, that protracted litigation is an emotional roller-coaster.
Third, by mapping comparative reactions of May and David, the points of convergent and divergent interests of the opposing parties are more apparent. For instance, at judgement delivery (both first and appeal), their interests unsurprisingly diverge. A judgement is typically a zero sum affair where one party wins and another loses. But, perhaps more valuable an insight, is that competing litigants may have periods in the journey where their interests are aligned, such as a mutual interest in the reduction of delay (as seen in the 18 month period that the parties were awaiting the House of Lords judgement).
The above example is an example of applying legal design techniques to one, well known case. But the technique could be applied to cases in any other subject in a legal classroom. The potential benefits to the students of doing so include:
1. A richer appreciation that disputes don’t occur in a vacuum of just ‘the facts’ and ‘the judgement’;
2. Understanding civil procedure, including not only the process, but user satisfaction, costs and effectiveness;
3. A deeper analysis of the case itself. Extracting information on the people involved and of their journey requires careful scrutiny of judgements, including lower and first instance judgements, which may not be required of students if they are looking only at the key ratio and salient facts;
4. Understanding of the points of dispute and potential resolution along a case journey, why they were not successful and what could have been done differently by the lawyers and parties to avoid the escalation;
5. Learn about legal design and its benefits. If legal design thinking is not sufficiently mature to have its own place in a curriculum, applying some of these techniques within more traditional classes may be a good stepping-stone to introducing legal design to students and the academy.