Posted Sep 12, 2004 05:46 pm CDT
It’s just that it can be devilishly difficult for them to get through their legal education with their generative powers intact.
A likely source of the problem is something I’ve mentioned before in this column: the well-documented tendency for law students’ values to shift during their first year, from internal sources of motivation—working in ways that reflect deeply held convictions—to external ones, focusing on gaining security, for example, or impressing others.
“It’s really not surprising,” says Thomas Barton, who teaches creative problem solving and preventive law at California Western School of Law in San Diego. “The rule of law for all its genuine contribution to civilization does train its practitioners to look externally for validation and for truth.” But learning ways to solve legal problems creatively is at the heart of Cal Western’s mandate. Why the emphasis? There are many reasons, but I find two of them particularly compelling.
First, it is vital to our communities that problems be well-solved within the legal system. We relegate our hardest problems to the law, and also those for which we have no other resort except violence. “The procedures that lawyers use must be as sophisticated as the nature of the problems that are presented,” says Barton. “Anything less will cause people to dismiss the law as ineffective or clumsy.”
True enough. But I really love the second reason, because it speaks so directly to my interest in lawyer happiness: Doing creative work feels great. In studies of creative people in the arts, business, science and elsewhere, subjects overwhelmingly claim that they do the work they do because it’s fun.
Surely, lawyers deserve to have some work-related fun —at least as much as anyone else. Who knows, it might even contribute to a healthier professional identity.
The folks at Cal Western have come up with a two-part approach for surfacing creative solutions that is making a difference for those who have given it a shot. (See www.cwsl.edu/cps for more information.)
The first step is expanding the context of the problem, so that new dimensions can emerge. It works well to begin with the client’s goals rather than the legal rules. That way, you can open up some creative space, instead of immediately focusing on proving a legal claim.
Step two urges lawyers to build a fuller repertoire for preventing and resolving problems, and then to use the best procedures for addressing any particular problem.
Such a repertoire should include skills for invoking various ADR mechanisms. But it should also use techniques to prompt imaginative, untraditional solutions, such as brainstorming, mind-mapping, random word association and others. Finally—and this can be a crucial creative step—the repertoire should include sensitivity to alternative understandings of what might constitute “success” in addressing a problem.
Bryan Liang, director of Cal Western’s Health Law Institute, suggests this example. Suppose a patient has been negligently injured by a doctor.
The lawyers for the physician or the hospital should certainly consider mediation as an alternative to litigation. It prompts mutual understanding, which can be crucial in this especially sensitive context. The patient has the opportunity to express and have his suffering acknowledged, and mediation allows the physician to apologize and also to convey to the patient that he, too, is sorry and deeply shaken.
Quite different approaches to this problem emerge, however, by reframing our understanding of the patient/physician relationship. What if, Liang asks, we were to view medical errors through a “systems” lens rather than as “shame and blame” to be borne exclusively by the immediate attending physician?
Katharine Rosenberry, co-director of the Center for Creative Problem Solving at Cal Western, recalls a lesson in context expansion that occurred when she was working on a project in France. “French condominium law is similar to our law,” she says. “It permits the homeowners association to impose late charges, record a lien on a condo unit and force a sale when an owner doesn’t pay monthly assessments.”
But the manager of a 465-unit condo in Paris gave her an example of the procedures his group used when an owner failed to pay assessments on time. Instead of going straight to a legal solution, the association inquired about the owner’s failure to pay and found out that he had lost his job. It loaned money to the owner so that he would not incur late fees. Other owners contacted friends and relatives and found him a job, making it possible for the man to pay back the loan and future assessments on time.
Still, a question hangs in the air: What’s in it for lawyers? After all, it didn’t take one to solve this problem. On the practical side, condo association lawyers make money by representing numerous associations. If they develop a reputation for saving clients money and heartache with creative approaches, the demand for their services will, no doubt, grow.
But there’s one other thing. Although working well with legal rules is a vital lawyerly skill, many human problems can be addressed without reference to them. If doing so would actually solve the problem more efficiently, effectively and humanely, then why not?