There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

In fact, the first major “breakthrough” moment in any good legal education is that one when the student realizes law is not what she thought it is — the learning of rules that she then applies to facts — but is instead that legal reasoning involves the enormously creative and imaginative ability to relate legal rules, earlier applications of those rules, and the myriad of other considerations that go into our conceptions of justice. As importantly, legal practice is also a matter of being able to communicate that complex reasoning, and the ability to communicate it well is inextricably intertwined with the ability to imagine it in the first place. Creativity and imagination, of course, are required to find the law as well.

These are not controversial views. They are central, however, to my fascination with the interplay between law and art.

One enormous component of genuinely creative work is audacity, which, in an article entitled Audacity in Contemporary Art, Diogenes March 1969 vol. 17 no. 65 1-19, Eduardo Gonzalez Lanuza defines very aptly in this way:

Audacity is “an attitude which consists of ignoring what is expected of you and daring to do what no one else dares to do.”

And yet most everyone believes law is authority that determines what is expected of you and requires you do what everyone else does.

So it is with enormous pleasure that I note that Corporate Counsel magazine has awarded Google its “Best Legal Department” award because of, as the magazine’s editor explained, the group’s audacity:

Past years’ winners were often defined by sedate virtues like superior systems and organization, but this year I’d have to say the key quality was audacity.

I’ve long been a fan of Google (though not an unqualified one), and there’s no doubt that its daring has been no small part of my admiration. I can think of few things I would want more as a lawyer than to represent Google in connection with the Google Library Project. So here’s to Google, and if anyone there in the legal department is reading this, I’d love to become your colleague.

Addendum: Speaking of Google’s audacity, not more than a few minutes after posting the above, I came across this, via Plagiarism Today:

Google has signaled that the company is prepared to oppose the major film and music companies as well as Congress and the president of the United States on a controversial bill designed to thwart online piracy.

Google Chairman Eric Schmidt said today in London that the company is prepared to go on fighting the bill should it become law, according to published reports. U.K. publication the Guardian is reporting that in a discussion with reporters during a London business conference, Schmidt said: “If there is a law that requires DNS [domain name systems, the protocol that allows users to connect to Web sites], to do x, and it’s passed by both houses of Congress and signed by the president of the United States, and we disagree with it, then we would still fight it…If it’s a request, the answer is we wouldn’t do it; if it’s a discussion, we wouldn’t do it.”

In the article Krugman refers to, the authors set forth a chart dividing different tasks into “analytic and interactive tasks” and “manual tasks.” They also then divide each of those categories into those that are “routine” and “nonroutine.” I was relieved, but not surprised, to find that legal writing is an analytic and interactive task that is nonroutine:

You get justice in the next world, in this world you have the law

Today I made a brief car ride with my son last an hour so I could hear all of the latest episode of This American Life. Entitled “DIY,” the summary set forth below, from the This American Life web sitem fails to do justice to a story that brought me to tears, that reminds me again what this whole life of the law ultimately boils down to. Fortunately, you can hear the whole episode yourself from the player pasted in below the summary:

PROLOGUE.

Carl King, a self-taught investigator, talks about the murder case he’s working on now—one the police think they’ve already solved. Carl got started in this business after freeing his close friend from prison. He now runs an organization, called Success to Freedom, devoted to helping wrongfully convicted inmates. (2 minutes)

ACT ONE.

Reporter Anya Bourg tells the story of Carl King’s first case, where he’s able to accomplish what experienced detectives and lawyers were not. He proves that his friend was innocent. In this first half of the show, we hear the story of the crime. In 1980, Mario Hamilton was gunned down in the street in Brooklyn. A teenager claimed to have seen it happen. With police prompting, he fingered a guy named Collin Warner as the shooter. No matter that everyone in the neighborhood said someone else murdered Hamilton and that Warner had nothing to do with it. And no matter that the teenager hadn’t witnessed the murder at all. A jury convicted Warner, and he was sentenced to 15 years to life for killing a man he’d never even heard of. Carl, his childhood friend couldn’t let it rest, and started to fight the conviction. He tells everyone he can about the case. He tracks down witnesses. He teaches himself to read court documents. Eventually, he gets a real estate lawyer hooked on the case. (29 minutes)

ACT TWO.

The story of Collin Warner continues. His friend Carl manages to convince the real shooter and the victim’s brother (who watched him die on the sidewalk) to testify on Collin’s behalf. After 21 years in prison, Collin goes free. (24 minutes)

Large-scale commercial contracts often include arbitration clauses in the hopes of avoiding large-scale commercial litigation. But litigators are starting to find the quicker, cheaper, more private aspects of arbitration have turned into lengthy, expensive and often public quasi-trials.

This has a growing number of attorneys advising clients to either take their chances in court or tailor very specific arbitration clauses with the hopes of limiting the expense of arbitration. It’s a slow-moving process, however, as litigators are rarely consulted when corporate attorneys are drafting contracts.

In the old days, Cozen O’Connor litigator Philip G. Kircher said, arbitration used to mean a six-month process “from cradle to grave.” There was very little discovery, fewer depositions and less case management. The parties would go before one or three arbitrators and have a short, informal hearing with the rules of evidence more relaxed than in court.

As arbitration became more popular because of the expense of litigation, corporations’ growing distrust of juries and the length of time it took a case to get to trial, the arbitrators became all the more sophisticated. That resulted in the parties asking more of those arbitrators in terms of complex discovery, more depositions and pretrial conferences, he said.

“Slowly but surely, what was once supposed to be fast and cheap was becoming probably just as expensive, if not more so, than going to court,” Kircher said.

Kircher had two arbitrations recently that have gone through weeks of trial, hundreds if not thousands of exhibits, dozens of witnesses and lots of briefing. The panel then sits with the cases for months to review all of that material.

“Even when there’s a final award, more often than not the losing party tries to find a way to appeal it anyway, so [it gets] hung up for another year before the award is rendered to judgment,” Kircher said.

He is part of a growing segment of attorneys who would rather have the security of an appeal and the finality of a court decision by taking their cases to court. Kircher is advising his clients to create clauses in their contracts that agree to have a nonjury trial in the event of a dispute or at least agree on a certain jurisdiction, preferably in federal court.

[Hat tip to Philip Loree.]