Keeva on Life and Practice

Creative Passion

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You can learn a lot about Nancy Zalusky Berg by stepping into the garage of her Minneapolis home.

At any given time, you might find glass-blowing equipment, including burners, torches, calipers and corks; bits and pieces of colored glass for making mosaics; chunks of concrete and wire mesh; pieces of old sculptures; and a diverse collection of well-used tools.

And if you meet her, it’s almost certain she’ll be wearing jewelry of her own making: not exactly subtle, but charming and whimsical.

A family lawyer, Berg is well-known throughout the Twin Cities and beyond, as is her law firm, Walling, Berg & Debele. A good deal of the firm’s renown can be put down to its reputation for crafting innovative solutions for clients. In other words, it’s a place where creativity matters–big time.

Now, I’m not of the opinion, as are many people I know, that lawyers as a group tend not to be particularly creative. True, it seems that many don’t bring their creativity into their work in an explicit way, but then I think it’s extraordinarily rare to find a firm that puts much emphasis on creativity anyway. It’s a shame, since it can not only lead to superb results for clients, but also enhance well-being and enjoyment at work.

Staying Open To Success

In the case of Berg’s firm, known as WBD, the connection between success and openness to seeing things in new ways is a given. Indeed, the firm has a history of finding out what can be created.

“We remain at the cutting edge of the family law field because we have made creativity a stated philosophy,” Berg says. “We tell our associates that anybody can fig­ure out a lawsuit. Our task is to look at the entire problem and serve clients by helping them find the solution, whether it be a lawsuit, legislation or family therapy.”

At WBD, associates are trained in storytelling, communication skills and basic counseling techniques–all of which help them understand the vicissitudes that shape clients’ lives. That way, Berg says, “they understand what it’s like, for example, to be a mom who is so exhausted that she’s afraid she’ll hurt her baby.” Walling Berg partners, along with associates, have made a habit of trying out various ways of looking at what they do. Off-the-wall ideas are regularly trotted out and discussed until their value becomes clear.

Berg sees creativity as a process somewhat akin to fish­­ing. “You have to be aware of what’s out there in the river of life,” she says. “If you’re open and sensitive to what’s in you and around you–and you need to be–you can dip into that place of possibilities and find what you need.”

Opposing the Obvious

One crucial thing the firm’s lawyers have discovered is that sometimes the most creative thing to do is to openly buck the status quo. Partner Wright Walling did exactly that some years back, when he tried and succeeded in doing the state’s first ever direct-placement adoptions, in which adoptive parents work together without an agency controlling the process. Up till then, the state welfare department had taken the position that the practice was illegal.

But Walling saw no reason it couldn’t be done, so he tried it. At first the state challenged and threatened him, but ultimately officials couldn’t see any reason to stop him, and the practice was allowed.

Another way the firm finds creative ap­proaches is by suggesting that asso­ci­ates ask themselves how they might look at their cases through the lens of other types of law–say criminal law, business law or labor and employment law.

David Gapen is a young associate who came to WBD in part for its reputation for creativity. Although, he says, “the work can be quite demanding, the fact that a good deal of it is creative lessens my worries about the burnout factor” that is common in family law.

Here are a handful of the solutions that have arisen from the culture of Walling Berg. The firm has:

• Found ways to combine family court and juvenile court jurisdiction to address unusual placement issues for children.

• Forged ways to deal with assisted reproductive technology in the absence of statutes addressing the issues. Among other things, the firm obtained pre-birth determinations of parentage in situations where intended parents used their own genetic material but a gestational carrier gave birth to the child.

• Developed approaches to dealing with contested adoptions and worked with a state supreme court rules committee to draft what appears to be the first rules-of-adoption procedure in the United States.

I’ll finish with words from noted trial lawyer Gerry Spence. He’s an entirely different kind of lawyer from those who work at Walling, Berg & Debele, but I think he would identify with their goals.

“Creativity is the single most important ability a trial lawyer–and probably any lawyer–can bring to the table,” Spence told me a few years ago. “If you have someone who isn’t able to create, I don’t want him to draw me up an estate plan. Creativity comes out of passion, out of a freed-up soul. If it’s all locked up with fear on the left side of the brain, nothing happens. You cannot reach a jury; you can’t get justice.”

Steven Keeva, an assistant managing editor, is the auth­or of Transforming Practices: Finding Joy and Satisfac­tion in the Legal Life.

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