Creative Counsel

  • April 01, 2014
  • Catherine Brennan

Two hands holding multiple shapesIt's amazing what a little creativity can do

When you search the term ‘lawyer personality’ online, you’ll read that lawyers are skeptical, disciplined, logical and tough. I’ve worked with hundreds of lawyers through the years, collaborating with them and coaching them through the process of writing. My friends and family will sometimes ask, “what’s it like to work with so many ‘Type A’ people?” Given the stereotypes out there, I can understand this question. But lawyers themselves will sometimes ask me this, and I have to scratch my head. Yes, the qualities listed above are essential for a good lawyer, but we fail to acknowledge one of the most critical (and fun) lawyer traits: creativity. Lawyers are highly creative people.

What is creativity?

Many of us think of creativity as an innate ability; there are the ‘creative types’ and then the rest of us: accountants, mechanics, engineers and, well, lawyers. According to David Usher, award-winning artist and leader of the popular rock band Moist, “the ‘creative type’ simply doesn’t exist.” At the Ontario Bar Association’s Institute in February, Usher spoke to the audience of lawyers about his life-long involvement with the creative process. “The reality is, creativity is 95% work and discipline and just 5% inspiration,” he said. “It is a skill set you can learn and master, and apply it to your day-to-day life."

Successful lawyers are natural problem-solvers; every day they provide innovative solutions to complex problems.

In a 1995 interview with Wired, the late Steve Jobs offered the following definition: “Creativity is just connecting things. When you ask creative people how they did something, they feel a little guilty because they didn’t really do it, they just saw something. It seemed obvious to them after a while. That’s because they were able to connect experiences they’ve had and synthesize new things... The broader one’s understanding of the human experience, the better design we will have.”

In other words, we’ve come to know creativity as a process of combining existing ideas, information and perspectives to illuminate something in a new way. The greater your knowledge base, the more you have to work with to achieve these combinations. Information alone won’t get you there – creativity truly is a process.

“In mediation, there is no template. You have to be creative, to think on your feet, minute by minute. Beyond assessing the conflict, there is no set series of steps.” - Hilary Linton

“There is really almost a scientific formula for it”, said Usher. “Everybody has ideas, but to make them real and valuable they must have structure.”

Creative Lawyers

Let’s re-visit that lawyer personality: Successful lawyers are natural problem-solvers; every day they provide innovative solutions to complex problems. Lawyers are tasked with navigating through the confines of the law, the case, the client’s needs and through an overburdened justice system.

Robert Rotenberg is a criminal defence lawyer and successful crime fiction writer. His latest book, Stranglehold, follows fictional detective Ari Greene, who is caught up in a homicide case during a crime-ridden mayoral election. A former magazine editor, Rotenberg has published several novels and enjoys writing as often as he can. “I can’t imagine practising without writing, it’s how I survive being a lawyer, and being a lawyer is how I survive writing,” he says.

He credits his fiction writing for much of his success in criminal law: “The trick to successful advocacy is knowing how to tell a story. When I first meet a client, I ask them to tell me the story of their life; I can’t defend someone until I know who they are. It’s the same when I write a character outline. The best lawyers, no matter what they’re doing, know people.”

Hilary Linton, the principal of Riverdale Mediation in Toronto, also believes creativity is essential to success in her field. “The most successful mediators are chameleons; they have to adapt to the needs of the parties, reacting on the spot, minute by minute,” she says. “You can’t expect clients to come into your box; you have to go to where they need you to be.” A classical pianist, Linton compares her mediations to a symphony: “I find it helpful, and I much prefer this analogy to that of warfare.”

In addition to the practical benefits, creativity is energizing and fun. Every December, my colleagues at the OBA eagerly anticipate the arrival of the annual holiday greeting card from estates firm Goddard Gamage Stephens LLP. The 2013 card - still on display at the desks of many OBA staffers – mimics an album cover, with all six of the firm’s lawyers in full punk get-up, complete with leather, spiked hair and tattoos. They are the 70’s punk band “The Files”.

“Every year the phone calls and e-mails start coming a few days after the cards are dropped in the mail,” says firm partner Jan Goddard. “I’ll run into someone in May or June at some event or another and they’ll tell me ‘your card is still on my desk.’”

They began with scenic paintings by family members, until one year, when a lawyer in the firm brought in some sock monkeys she’d made as a hobby, they decided to have a little fun. They took them to the Great Library, where they snapped a series of pictures with the monkeys dressed in collars and robes. The reception from colleagues and friends was very positive, and from there it took off. “Each year we knew we had to do even better than before, to up the ante,” says Goddard. They donned full hockey gear for a photo shoot at the local rink – ‘the Goddard Goons’. Then came the Spice Girls and Wizard of Oz. Photography was managed by a firm friend, costumes were rented and locations were scouted, but all of the ideas were generated by the lawyers themselves. Says Goddard, “because we have a really strong emphasis in this firm on problem solving, I think it meshes well with creative endeavours; when you are trying to come up with an idea, you have to look outside of the normal boundaries.”

“Of course there is a risk,” she adds. “You want to be careful about what you do. We put a lot of time into determining how far we want to go. We are careful about the photographs we choose and the text we use. “

Fear and resistance

Creativity requires risk: untested ideas bring uncertainty, and uncertainty is frightening. In the creative process, one must anticipate resistance and fear and then overcome it.

“Whenever we step outside our safety zone we run headlong into the roadblocks to creativity,” said Usher. “That block is the voice that comes screaming at you from the back of your head every time you take a risk…none of us want to risk embarrassment in front of our peers or failure in public.”

When faced with uncertainty, we tend to reject creative thought and seek the comfort of the status quo. However, the more we fear failure in a particular pursuit, the more certain we can be that it is important, which presents us with an opportunity to grow.

Brian Howlett, chief creative director at Agency59, the ad agency behind the OBA’s ‘Why I Went to Law School’ campaign, also sees value in creative insecurity: “Creative people are often insecure, but we can’t be afraid of failure. We must have trust in being allowed to fail.”

Motivation works

Is your motivation to win or to avoid failure?

According to social psychologist Heidi Grant Halvorson in her book Focus: Use Different Ways of Seeing the World for Success and Influence, creativity is tied to our motivations. Those who use a creative approach to gain something have what experts call “promotion focus”. This incentive method has been shown to be very conducive to idea generation. People tend to be less risk-adverse, thus opening themselves up to the exploration of new thought patterns.

“Prevention focus” is the motivation to avoid failure or danger. We tend to be more analytical, risk-adverse and given to doubt when motivated by self-preservation. This can be a block to creativity.

For example, many top trial lawyers don't use extensive notes during statements. While notes are important for preparation, they become a hindrance at the presentation stage – we focus on them rather than on the audience we’re addressing; we’re preoccupied by the words; our body and language are tied to that piece of paper and so we restrict ourselves. This is an example of prevention focus – in that moment, we’re more worried about not sounding foolish than we are about delivering the message.

Prevention focus isn’t all bad; the two motivations work very well in tandem. Promotion focus heightens our creativity and facilitates idea generation, while prevention focus brings all-important caution and analysis once the idea is formed. The key is knowing how to recognize and order your motivations.

When you’re honest with yourself about your motivations, you’re more likely to succeed. When Goddard sends out her cards, it isn’t a marketing effort: “We actually do this for our colleagues – we do this in part because we feel it is representational of the kind of people we are. We do it because we know people appreciate it.”

Fostering creativity

According to Rotenberg, creativity in law is about turning the reactive into the proactive, finding ways to frame a problem. But where do these ideas come from? In all areas of law, lawyers often look to legal precedent or boilerplate language, but, “there isn’t an Internet site to look up ideas when I’m writing fiction,” says Rotenberg. “It has to come from me.” How?

“As we go through life we get experience and expertise, [which] gives us tunnel vision. As we get more focused and specialized, our childlike peripheral vision starts to blur and it becomes easy to stop looking outwards and to stop being curious.”

  1. Build a knowledge base

    In his definition of creativity, Steve Jobs stressed the importance of broad experiences. When I’m trying to come up with a topic or develop an angle for an article, I reserve time to shut down my e-mail, turn off my phone and plunge into the Internet. As an editor, I’m lucky to have the words of the world at my fingertips, and I use this to full advantage.

    I read a lot, everyday, from a multitude of sources: blogs, forums, magazines, newsletters, social media, short stories and even celebrity gossip sites. I read on the subway, waiting for my coffee and bagel, at my desk, on my lunch hour and on through the day. Much of the information I absorb will quickly fade away. Some will inspire me, educate me and entertain me. It will remain, somewhere in the folds of my brain, waiting to be brought forward in a moment of inspiration.

    It’s important to allow yourself time to learn, to play, to experiment and to fail. Life is busy, and it’s hard enough to manage the bare minimum most days. I’m not at all a morning person - to me, facing a Monday morning is like climbing Mt. Everest - so first thing each Monday I schedule my weekly creativity break. This is my time to absorb as much knowledge as I can, jot down ideas and set goals to pursue them. I find this method to be very effective because I’m having fun on a Monday morning, it energizes me, and I’m setting up my week from a creative place.

    It’s entirely up to you to find a method that motivates you, energizes you and fits with your lifestyle.

  2. Open your mind

    Creativity requires an open mind. There are many different ways to achieve this (no, I’m not referring to the ones we tried in our college days). Meditation, exercise, entertainment; anything that takes you out of your day-to-day routine will shift your perspective and allow you to make new idea connections.

    While a narrow field of practice brings many advantages in law, there is a downside. Usher explained in his presentation, “As we go through life we get experience and expertise, [which] gives us tunnel vision. As we get more focused and specialized, our childlike peripheral vision starts to blur and it becomes easy to stop looking outwards and to stop being curious.”

    I have a four-year-old son, and while parenting a small child can be exhausting, I’ve never felt more creative. Every day is an adventure to him, and he shows me how to view the world in a way I haven’t for many years. To be creative, we must open our minds to the non-linear and unpredictable, to challenge our own established ideas in order to gain new insight and development. We have to return to our four-year-old selves.

  3. Be mindful

    The more information you take in, the more you will become conscious of the potential for juxtaposition. While searching for a concept for the inside of her latest holiday card, Goddard experienced a collision of ideas: “We were trying to figure out how we were going to explain ourselves; we knew we were going to do the album cover but I was really stuck on how I was going to talk about it. As I was leaving the office at lunch time, a couple of the lawyers were looking at a coffee table book from an exhibit at the Met, photographs of people in punk. They were looking at a picture of someone wearing a T-shirt that said “Stay alive in ‘85” and one of the lawyers, who wasn’t yet born in ’85, said she should get a T-shirt that said ‘Not alive in ‘85’.”

    When she got down to the subway, Jan realized it would be funny to say the band played in the 70’s, before some of the members were born. “I thought, oh, that’s the sort of thing people talk about in a Wikipedia article.” So the inside of the card became just that, a mock-Wikipedia entry. (We fought the law and the law won. That, and we were sick of the bad hair days.)

    For Linton, cross-country skiing is her preferred manner of preparation, both mentally and physically, for intense mediation. “Mediation is an endurance sport,” she says. “How do you stay curious for six to eight hours at a time? It takes a lot of energy to stay alert, so it’s important to be physically healthy. Cross-country skiing puts my mind at ease.”

    Mindfulness is the period of incubation, when our brain mulls over the puzzle pieces, seeking a way to fit them together. This often occurs unconsciously, which is why people will often say “it came to me in the shower” or a “light bulb went on”. The idea was already there, quietly percolating until, voila! A connection.

  4. Assess your idea

    Once you’ve achieved your ‘ah-ha’ moment, it’s time to test your idea through analysis, experimentation and peer review. This is when the hard work begins, and it determines whether you’re going to make it or break it. It’s also the time when fear and resistance will rear their ugly heads, and when you may fail.

    Yes, you will fail. I guarantee it. Failure is an important part of the creative process, something we must learn to embrace. You don’t want to fail your clients, of course, but with proper testing and analysis, you can be confident that when you execute your idea, you will be invested, honest in your motivation and giving it your very best.

    If you’ve never considered yourself to be creative, take a step back and give yourself a chance. Look at what you do every day in your practice, and the amazing outcomes you produce. As Howlett puts it, “When you approach a problem creatively you put a part of yourself into it. After all, isn’t our overall drive in life to make an impact?”

Catherine BrennanAbout the Author

Catherine Brennan is Managing Editor of the Ontario Bar Association.

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