Will Law Help You Think Creatively?

There is a modern trend to emphasize the importance of creativity in many educational systems and in many workplaces. Much of the increase in productivity that is needed for economic growth comes from creative workers.

Many law and policy or legal theory classes in law school allow some room for creative approaches to legal or policy issues. There is some creativity in figuring out how to frame an argument or how to explain away facts that at first may seem unfavorable to the client's position. Yet the practice of law also has significant factors that impede creativity.

Hierarchical versus Egalitarian

Creative organizations typically have a less rigid hierarchy to foster informal communications between employees. They typically have less “power distance index” between workers of different status, and therefore more interactions between them.

Law firms typically are organized in a well-defined hierarchy based on ability to generate revenue: seniority and ability to bring in clients. A typical ranking system would place equity partners at the top, followed by non-equity partners, senior associates, junior associates, then paralegals. In large firms, low-level attorneys are given little interaction with clients. Lawyers are typically very conscious where an attorney went to law school, how prestigious his firm is, what type of judge he clerked for, and other ways of measuring status. “power distance” factor; personal autonomy and equality versus hierarchical structure.

Risk of failure

For individuals to be creative, the risk of failing has to be low, at least at the initial creative phase. Some projects require little initial investment so there is little downside risk. Other projects can be tried at a scaled-down level, allowing creators to tinker with them to optomize performance before trying the project at a big level. Many computer software projects like making video games can have both of these characteristics. Most legal work does not.

In our adversarial litigation system, the other side is always looking for weaknesses and errors. In transactional work, most practitioners prefer to be cautious. The downside risk of telling a client that they may legally proceed, and then the client being found liable is much more serious to the lawyer than telling the client just not to do something at all. It is easier to be safe than sorry. In some areas of law boundaries can be fuzzy: tort law – what is “reasonably forseeable”? In copyright law – what is “idea” versus “expression.” The safest course of action for the lawyer is often to say no, but unfortunately always saying no may needlessly inhibit the search new and better ways of accomplishing a business's objectives.

Spontaneity versus Planning:

Lawyers prefer to plan out details in advance. This is usually beneficial, but it can also inhibit on-the-job innovation. A contract to license a patent will often restrict allowable uses for the patented subject matter; it may only allow certain specified uses. Other beneficial uses may not be allowed because neither party foresaw those uses at the time the contract was ratified. Essentially the licensee can't invent anything new since that party can only do what was already foreseen. Similar problem can arise in other sources of law or in private contracts that are too rigid.

Rule-based Profession

Law practice is (obviously) heavily affected by rules – obligations to follow the law, obligations to clients. Here are some other ways law practice limits the discretion to be creative:

If something is too creative, even if literally complies with regulations, then it is often illegal. For example, tax-shelters are often suspect unless they can be demonstrated to have a purpose besides avoiding taxes. Prior to its demise in 2001, Enron used a number of legal and accounting maneuvers which complied with the literal laws and regulations and allowed the company to show increased revenue, but were found to be illegal by courts.
If something builds upon idea so experience learned elsewhere, it may result in liability, as it may mean the person is using confidential information or ideas they learned elsewhere.
Law is (obviously) a profession based on rules and conventions; conformity is important; it is based on precedent, appearances, etc. Lawyers routinely talk about receiving “guidance” from “authority.” There is not much room for oneself to think.
Legal resources fail to use creative ways of effectively imparting information, leaving them bland and boring. Compare law books to other textbooks, notice the lack of illustrations, bulleted lists, boxes, colored headings, and other standard methods of improving reader comprehension. Law firms not known for innovation.

Barriers to Entering

People who often create new companies, innovations, or ways of providing services are often individuals who are not part of the status-quo or are not content with it. The 3-years of law school, associated tuition, and regulation by state bars deter those individuals who are most likely to change the legal profession from entering it. Those outside the legal profession are barred from attempting to devise alternative ways of servicing clients. Those inside the profession are tightly regulated and have too much invested in the current system to experiment with new business models where they face uncertainty and possible sanctions from their state's bar. Thus, regulation reduces the potential pool of legal innovators. It deters potential innovators from joining the profession and requires those that do join to follow the profession's existing structure. For more information, see this paper.

Summary

Certain aspects of law practice do involve some creativity: thinking up novel legal arguments or thinking about a way to explain facts to the jury in the best possible light. Fact-finding often involves some detective work. Yet most of law practice is not that creative. The high-stakes, adversarial culture of litigation discourages creative approaches to problems. The desire to plan out details in advance at the expense of later flexibility often leaves less room open for new and more efficient ways of accomplishing the client's objectives.