» Practice in General, Trial » Creativity


I’ve had creativity on the brain lately. Always looking for ways to improve the way I represent my clients, I’ve been tying to address my faults as a lawyer by emulating in my problem areas the way I approach those aspects of my job that I believe to be my strengths. Strangely, hiding behind every single thing I ever even arguably thought I did somewhat well was creativity. It turns out that most of the supposed talents I occasionally think I have are just symptoms of the underlying disease of an occasional abundance of imagination.

I sucked at cross-examination five years ago. I was terrible. Prior to that, however, I vaguely recall performing what I thought was a great cross of a cop while I was a law student participating in a criminal defense clinic. My supervisor as well as my peers told me I did a good job, so I initially assumed I was talented. I know better now. After one dry and barely-effective cross examination after another and a little while in the courtroom on my own, I figured they just had low standards in the clinic. Later trying to improve my method, I realized that the secret was that I’d accidentally harnessed a little bit of creativity. Maybe I did a decent job after all.

The professor, who’s a pretty amazing trial lawyer, told us to write out the questions we wanted to ask on cross. I did that, which acquainted me with the facts I wanted to elicit, but I did something else far more important. Over lunch and immediately prior to examining the cop in court, I told a group of friends about the case. I told them the story of my client’s case, which was the tried-and-true fact pattern commonly referred to as the “not my pants” defense. Your client is alleged to have drugs in his pockets, and he claims they weren’t his pants.

The problem, which was actually the benefit, in retrospect, was that I truly believed my client wasn’t wearing his own pants at the time of the search. He was going out and had to adhere to a certain dress code. His clothing wasn’t going to cut it, so he borrowed some slacks from a friend. I told the story to an incredulous group of law school go-getters, and I paid attention to their reactions. I addressed their skepticism where necessary and had them all convinced that there wasn’t probable cause to proceed with charges. When I got to the courtroom, I ignored my outline altogether and retold the successful narrative I just ran by my friends through the officer on the stand.

After getting a little bit of positive feedback, unfortunately, I completely missed the real lesson. I thought the outline of questions was the secret to my modest success. That was what an authority figure told me to do, right? I slavishly adhered to detailed, written cross-examination outlines for longer than I care to admit, making an acceptable record but failing to accomplish the kind of success I hoped to achieve. It wasn’t until I recognized the root of the problem, the need for me to let my creative side flourish and follow my deepest instincts, that I developed any semblance of command over the state’s witnesses while they were on the stand. As I continue to improve, I see it’s the underlying act of better applying my own ability to think creatively that achieves the results I seek.

Understanding the fact that creativity is the best-kept secret not just to cross but also to trial advocacy, legal writing, and the practice of law in general, I’ve become aware of the big wide world of people who’ve known about my monumental discovery all along. Looking back at music school, I realized that the greatest artists were the people of modest intellect who didn’t overthink things and the geniuses who had the razor-sharp intellect to look through the seemingly necessary clutter that fills ordinary minds of people trying too hard to excel. Both groups lack the white noise that prevents the creative person inside of them from flourishing. The same is true in law, as many of the bean-counters in the top of my class are now mediocre lawyers, while a few of the creative misfits are already accomplishing amazing things for their clients. Wiser people knew all along, but I didn’t listen.

Although it’s still just a compliment to hard work and having the mental capacity to understand the requisite concepts in the first place, creativity separates the good from the great. It’s the resource we all have in greater measure than we probably know, yet we seek to acquire outside techniques that may be wholly incompatible with our personalities in lieu of refining our limitless potential within. It isn’t really our fault, however. As Kenneth Robinson explains in his TED talk, which my mom happened to send me last week, we don’t grow into creativity, we grow out of it. We are trained to think there is a hierarchy of subjects, with math and English at the top and creative things like the arts at the bottom. We teach people to be careful and knowledgeable, which are undoubtedly essential traits, but we pay almost no attention to the fundamental concept of creativity. We emphasize the outline and ignore the story. Kenneth Robinson argues that society should change the way we educate, which is true, but each of us individually should change the way we address our shortcomings in our jobs to reach the same ends.

The internet is actually a great wealth of information to do that, and one such example is a great speech given by John Cleese from Monty Python on the subject. As a local musician explained, John Cleese believes you need space to become playful, time to spend in your space, more time to give your mind as long as possible to come up with something original and learn to tolerate the discomfort of pondering time and indecision, confidence to avoid the fear of making a mistake, and humor to transition from a closed mode of thinking to an open one. Those are essential elements, and it’s tough to argue with John Cleese’s success as a creative person, but I’d add another essential factor. Limits are also important, which ties right back in with my first observations.

I’m a lawyer, and it seems like creativity should have little if anything to do with my profession. Making an outline is an obvious solution to a problem like ineffective cross-examination. Organizing my thoughts and amassing a great wealth of knowledge seem important too. Those are undoubtedly prerequisites, but they are not the only parameters within which I must practice. I can’t ask a witness about irrelevant things or violate other rules of evidence exploring my inner potential. However, I also shouldn’t shun creativity inside the confines of the legal profession because there are so many rules. The fact that my job is limited is a good thing as well as a bad thing. Limits focus. People hear I once considered myself an artist, and they ask me to do something creative. I inevitably find myself paralyzed with a lack of imagination. If they focus their demand, I often shine. Creativity isn’t the antithesis of a lawyer’s work. It’s actually the essence of what we do, we just do it inside of the system. We should embrace that and cultivate it.

H/T my mom and Bruce Hembd

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2 Responses to "Creativity"

  1. Mark Kernich says:

    I came to similar insight one day while juggling a cross examination. At the time I was not just a lawyer, but also played in a working rock band (averaged a paying gig per fortnight that year) and that might explain the ‘higher’ part of my mind realising that what i was doing was performance art as much as playing my guitar in the spotlight. Not in the ‘technique’, but in the ‘attitude’. It all started making sense from that point, evolving from meticulous lists of questions and topics, to dot point ‘guides’ of a single page or less.

    My old flamenco teacher used to say that art of improvisation is in the practice, only when you are so well rehearsed that you hear the imperfections in all that you do will you be able to truly improvise. That’s expressing creatively within a very tight formal structure something that is truly unique. Much like we do every day in a court.

    I hardly play these days, but I still hear the music when I step in a courtroom.

  2. Alice Harris says:

    I think you learned something valuable with this”not my pants”experience. People understand the world best through the story. Being a great trial lawyer requires becoming a great story-teller. The rules and procedures of trial make it hard, but finding and telling the story in a compelling way will bring success.

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