The creative synthesis of practicing law

My father is a famous artist. Frequently, when folks learn this fact, they ask whether I also paint or create art. I don't. But I like to respond that I view myself as a creative lawyer. This answer can throw people for a loop. And I think it's because "creative" and "lawyer" aren't words that are generally paired. But why not? The answer, in part, stems from the fact that our profession conflates experience with creativity (favoring the term "experience" instead of "creativity"). And that we tend to overlook (and undervalue) the creative choices we exercise in our daily practice. I am a creative lawyer. And I bet you are too.

Experience provides the foundation

When I first began to practice law, I resented the hierarchical nature of our profession. It made no sense to me that we paid people (and billed clients) based on their years of service in the profession. But I understand now that experience is a necessary prerequisite to a creative practice.

After graduating from law school, I had lots of theory but no experiences of my own to draw from. As a result, I didn't even attempt to practice creatively my first few years of practice - I simply wanted to avoid making mistakes and ensure that I adhered to the standard rules of practice (which I was continuing to learn).

Now, six years later, I have a wide range of experiences to draw from. I have drafted and filed multiple complaints and answers. I have written and argued multiple motions before multiple courts. I have taken and defended depositions. I have represented clients at trial. Each of these experiences provided me with insights as to arguments that are effective (and those that are not), strategies that have worked (and those that have failed), as well as best practices and preferences.

Of course, experiences themselves do not a creative lawyer make. But these experiences fill our quiver such that we have new arrows to draw when facing a legal conundrum. And the more arrows in your quiver, the more options you have in any given circumstance. Creativity comes into play as we pick and choose which arrow to aim at each new issue.

For a long time, I resisted this definition of creativity. In my early 20s, I would lie awake wondering whether I had an original thought in my head (and agonizing over the fear that I didn't). I have come to peace with the fact that my original thought may simply be applying a constitutional argument to a contract dispute. The creativity comes in the pairing, not thinking up the constitutional argument itself. But isn't this what most creative artists do? They bring their skill set (including their knowledge of past artistic advances-like perspective and color theory) to the canvas in front of them. The best artists (Raphael, Rembrandt, or Velazquez) understand the precedent before them and add something to the on-going conversation. This is why our clients pay more for experience - you can't practice at the highest levels of our profession until you understand the precedent, learn the trade, and hone your own voice. It is only then that you can lawyer creatively.

Creative choices abound

When folks tell my father that "they don't have a creative bone in their body," my father will usually respond by pointing at their outfit. "Look at the choices you made today," he'll say. "You picked out earrings that spoke to you. You liked the color of this shirt. You made artistic decisions and you are communicating a message."

In our practice, we of course do the same thing. Because our job involves representing a person or an entity with a perspective and a story (and an ultimate goal), I am inspired by our daily opportunities to convince people as to our client's position. Whether in an email to our opposing counsel or drafting a brief to the court, there are creative choices available in each communication. Lawyers, in fact, make so many decisions on a daily basis that we have coined a phrase to describe our "decision fatigue." Each of these decisions is a moment of creativity - two roads diverge in a yellow wood and we get to pick which road we choose 100 times daily.

Real, not artificial, intelligence

That's why we will never be replaced by automatons.

Earlier this summer, the Washington Post reported (with fanfare) that one of the country's biggest law firms hired a robot lawyer. "ROSS" was marketed as the "world's first artificially intelligent attorney." ROSS can review thousands of legal documents and identify precedent to bolster the firm's cases. In other words, ROSS is a first-year associate.

I have no fear, however, that ROSS will replace our profession anytime in the near future. Law is not an objective science. Our field occupies the subjective arena of resolving disputes in a way that leaves our clients feeling pleased (or at least not displeased) with the outcome. To do this, we must be artists. We must be therapists. We must be writers. We must be researchers. We must be performers. This synthesis demands creativity. I should stop telling people I'm a creative lawyer. Telling folks that I practice law should be enough.

Published: Fri, Aug 26, 2016

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