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First Paper

-- By JeremyChang - 26 Feb 2013

What is Legal Creativity?

What is creativity? Narrowly construed, I think it is the ability to come up with new ways of solving a problem. In this sense, legal creativity can be (loosely) defined as the intellectual ability which enables innovative solutions to complex problems. For both common law and civil law lawyers, having legal creativity is being able to change the outcome of a case, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately getting a desirable result.

But there is a slightly wider definition of legal creativity as well. Or I would say, there are other manifestations of legal creativity other than a counsel’s clever and eloquent argument. We learn many cases in law school. For a judge resolving any given case, some degree of creativity is needed. Of course, a “creative solution” may be needed most in the more difficult cases, but a judge’s adjudication of a legal dispute is in itself a process which involves significant creativity. We can find other manifestations of creativity in the Code of Hammurabi or the laws of Lycurgus, and more recently in history the bill of rights and the U.S. Constitution. Or institutions like the International Criminal Court or the United Nations would be other examples of creativity in a legal context.

The creativity in play in the legal universe is different from that in other fields such as science. One would not expect lawyers to be creative in the same manner Albert Einstein came up with the theory of Relativity. Nor do we expect lawyers to be creative in the way poets write poems or songwriters produce songs. Lawyers do not create new works of art or invent things in the material world. Legal creativity functions differently compared with scientific creativity in that it implies a social and ethical dimension. Such ethical responsibility is not just being truthful to clients and avoiding malpractice. It is a broader concept encompassing the lawyer’s psychological posture and awareness in keeping step with society’s demand and its intellectual development. I think legal creativity should not be thought of as a weapon with which lawyers defeat their adversaries. It should not be a self-serving instrument. Rather, legal creativity should be understood as having the effective means for social change and justice. As Cohen suggested, the law is about things happening in the world.

I do not suggest that legal creativity is possessed only by the most provocative thinkers of law. The legal universe needs both conservatives and revolutionists. For stability and consistence, a conservative is needed. For change, progress, and disconnection from the past, a revolutionist is needed. To a casual observer a conservative might seem like a lumbering dinosaur and a revolutionist a rowdy. But both sides are the same in that they are both employ legal creativity, and that they both contribute to the gradual progression of society. I do not see legal creativity as a revolution. Even those groundbreaking court opinions were preceded by precedents, slowly reflecting the direction in which society had been moving.

How should the legal education change?

Consilience

As Eben suggested, I believe consilience is a critical aspect of the 21st century law practice. Combination of different knowledge, spreading of ideas, sharing thoughts and opinions, and communication among disciplines should all be encouraged.

Focus on people

One of my fundamental beliefs in life is that everything we do and the system that we live in is made and operated by people. When I hear the cliché “nothing is impossible,” I take it as “nothing is impossible if you know the right people.” In other words, pulling the right strings can put deals through which otherwise would go sour. “People skill” will be a critical difference between creative lawyers and non-creative lawyers. The legal profession is a profession of communication, and human skills such as reading body language, predicting human behavior and the ability to network will make a difference.

Experience

Law schools do not teach students to have a practice of their own. We are taught to be canned while being fed continuously with the glamorous false image of big law. We eventually lose our ability to see the big picture. Having practical experience through mentorship can help alleviate this problem. As a business undergrad, I’ve learned various theories on how to run a business. But those theories did not help me a whole lot when I had to raise money for my IT start-up. It took me a few years before realizing that there are things you learn better by doing. Lawyering I think is one of those things.

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