It’s not as if I’ve never dealt with these matters for real, as if I’m dealing with it from an academic perspective “unsullied” by the realities of practice. A client who retained me to draft a contract for him once said to me, after we’d spent a considerable amount of time discussing the details of his deal, “It’s all boilerplate, right?”

I responded, “I don’t do boilerplate. Every deal is different, and if you know the lawyer who’s done exactly your deal before and you’re confident the contract he wrote then is just fine for you, go hire him.”

Which isn’t to say I didn’t review a lot of other contracts or that I didn’t lift language from those other contracts. I did. I took a line or two from this one, a paragraph from that, another line from another, etc. And I put those things all together with my notes, shuffled things around, revised a lot of the language I’d lifted from other sources, wrote far more language necessary to express what was necessary to express this particular deal, worked and reworked, checked and rechecked, revised and revised, and at the end I had a document that set forth the client’s deal in all its precision, breadth, and ambiguity. It wasn’t boilerplate at all. But were there lines and even, perhaps, a paragraph lifted from other contracts? Of course.

I obsess about these matters in part because there is terrible confusion about what genuine creativity (in art, music, literature, the practice of law or a myriad of other endeavors) is. The confusion arises because, I believe, there is so much money at stake in the legal and rhetorical wars over copyright. So there are a lot of people who will look at Shepard Fairey’s Obama Hope poster and the photo Fairey used as the poster image’s source, and write things like the following:

Any director, writer or actor interested in making long-term money in the entertainment industry should be calling Fairey what he is: A plagiarist.

While I recognize the attitudes underlying these views — no one else is entitled to make a buck from my work! — the blindness to the creativity involved, even acknowledging the appropriation, is astounding. I’ve gone on at length about my view on this, but no one can deny that Fairey’s poster had a profound resonance and impact during the 2008 presidential campaign, and no one can suggest that the poster would have had any similar impact if the original photo had appeared on the poster rather than Fairey’s reworking. So how can anyone possibly suggest the level of creativity in the poster wasn’t profound?

The KLF “were one of the seminal bands of the British acid house movement during the late 1980s and early 1990s.” Their relevance here is that, “despite their protestations of 1988 about not wishing to be seen as crusaders for sampling, the [KLF] continue to be associated with the cultural movement which retrospectively bundles together those literary and artistic works that make use of ‘creative plagiarism’. 1987: What the Fuck Is Going On? is considered a landmark work in the early history of sampling music in the United Kingdom.” Their #1 British hit, “Doctorin’ the Tardis” “is predominantly a mash-up of the Doctor Who theme music, Gary Glitter’s ‘Rock and Roll (Part Two)’ with sections from ‘Blockbuster!’ by Sweet and ‘Let’s Get Together Tonite’ by Steve Walsh.”

Jimmy Cauty and Bill Drummond — who were the KLF — are also very smart fellows. Among a never-ending series of creative works in a wide range of media, they wrote The Manual: How to Have a Number One the Easy Way, which I’ve heard some describe as a cynical con job but that is far more intelligent and complicated than that. On the one hand, The Manual explains

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested. They have to believe it is through this sojourn they arrive at the grail; the great and original song that the world will be unable to resist.

But Drummond and Cauty are not accusing successful musical artists of being “mere plagiarists.” They recognize that even if a song can be broken down into bits and pieces of other songs, there is real genius in great pop music:

So why don’t all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it’s never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it’s because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention. This doesn’t just come via the great vocalist or virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire. The creators of that music just press a few buttons and out comes – a million years of pain and lust.

Lewis Hyde makes a similar point in Common as Air, the new book that was the starting point for my exploration the other day of lawyerly “plagiarism”:

“Intellectual property” is the phrase now used to denote ownership of art and ideas, but what exactly does it mean? Does it make sense, to begin with, to say that “intellect” is the source of the “properties” in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jr’s “Dream” speech, the poems of Rimbaud, Andy Warhol screen prints, Mississippi Delta blues, the source code for electronic voting machines: who could name the range of human powers and historical conditions that attends such creations? All that we make and do is shaped by the communities and traditions that contain us, not to mention by money, power, politics, and luck. And even should the artist or scientist think she has extracted herself from the world to stand alone in the studio, a tremendous array of faculties and mind- states may well attend her creativity.

There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory — “dream property,” “courage property,” “grief property” — and even if we had that list, only half the problem would have been addressed.

Do you want a great lawyer? You can have one even if he cuts-and-pastes the work of other lawyers into his work. But please — don’t believe for a second that means that lawyering can be reduced to cutting-and-pasting. Lawyering requires as much creativity as any endeavor on earth — if I didn’t believe that why would I write a blog devoted to law and creativity? And creativity is infinitely more complex a matter than tracking down the bits and pieces that make up the creative work. It requires the imagination necessary to find those bits and pieces, the vision to understand how to select and fit them together to due the present job, the skill borne of years of work to write in the stuff that can’t be found anywhere else and without which those bits and pieces would be just a bunch of crude boilerplate that doesn’t fit well into any specific situation at all, the passion and energy necessary to do the work to bring all this stuff together, the courage to stick to one’s vision even as one’s adversary is insisting you’re wrong, the delight without which the strength to do all of these difficult things would be impossible to muster, the generosity of spirit that can identify a client’s problems as your own, and a million other things.

So don’t you dare suggest that taking some language that is useful for doing the job that needs to be done from another lawyer is evidence lawyering is like putting together tinker toys.

Nevertheless, the judges who made the choices “were dismayed to find no women lawyers or members of ethnic minorities. This follows a report last month from The Lawyer magazine that women account for just 14 per cent of partners at the UK’s four leading or ‘magic circle’ firms. One judge commented that law firms claiming the mantle of innovation must surely show a greater commitment to diversity.”

Perhaps that’s why Marc Harding, General Counsel of Barclays, was selected for

leading the charge for the profession to step up to the challenge of diversity, helping the Law Society complete its first draft of a diversity charter. Mr Harding first demanded that his legal suppliers give Barclays diversity statistics in 2006. Not only must the seven key advisers to the bank deliver these statistics, he also demands them from the bank’s 10 specialist legal panels. The legal press have commented that his work in moving diversity up the agenda will have a lasting impact on the client-lawyer relationship.

Another interesting choice was David Gray, Chief Executive of Eversheds:

To demonstrate the importance of openness and accountability, Mr Gray created a mechanism to receive feedback from the firm’s partners. In a courageous move, he kicked off the process at a conference in 2006, where he stood in front of Eversheds partners and invited them to score him on his performance during his live presentation. The partners anonymously scored Mr Gray from 1 to 5 on specific questions via electronic keypads, with the results screened instantly for all to see. Mr Gray says it was “pretty terrifying”, but “I did it because I wanted to bring home to them that accountability had to start at the top”.

Mr Gray invites feedback via an intranet page, asking partners to rate him on communication, strategic decision making, motivational skills and general leadership.

One of the things I learned [as an apprentice copy writer] was: Don’t stop at the first good idea you have. Keep going. Keep asking “what if . . . ” until you have a dozen ideas that might be something. But what you should never do is delude yourself that your first decent idea is enough, because chances are, it’s a fairly obvious one that pretty much anybody could come up with. This, it seems, is the very thing that hobbled my exam performance. And the reason I’m likely, as Al Franken/Stuart Smalley would say, to die homeless, penniless and twenty pounds overweight. I have a tendency to be what we in the law biz call “conclusory.” In other words, once I see a solution, (particularly under the fairly intense time pressure of an exam) I stop thinking about other possibilities. This is bad in advertising, but it can be fatal for a lawyer. In advertising, assuming you operate at fairly high level of conceptual sophistication to begin with, your one good idea might turn out to be the best solution and get you fame and awards and a coterie of nubile co-ed interns. And if not, no harm done; it’s probably still a serviceable solution and it moves the needle* for your brand. But for a lawyer to focus on just that one idea, he’s leaving himself (and his client) vulnerable to the other side by not seeing other ways an issue can be argued or the facts construed, not seeing how the other side can defend against his idea. I’m sure there are other possible permutations of prospective doom, but I’m too tired to think them all through just now.

I always tell my students: one good answer is a good answer.  Two good answers are better.  The more good reasons you have for you’re client being right, the better off your client is.  So if any of my students are reading: don’t be satisfied with the first half-decent answer you come up with.

A client comes to a lawyer rather than, say, a psychologist, investment counselor, or business advisor because she perceives her problem to be essentially legal in nature. But most real world problems do not conform to the neat academic boundaries that define and separate different bodies of knowledge, and a well-trained lawyer must be able to counsel clients beyond the confines of his or her technical legal expertise. Indeed, most clients do not expect their lawyers to confine themselves to the law, but rather expect a lawyer to integrate legal considerations with the other components of their problem. Thus, much of a lawyer’s work involves assisting clients in solving non-legal problems. The solution may be constrained, facilitated, or even driven by the law, but they often call for judgments, common sense, and even expertise not particularly of a legal nature. Even when legal questions dominate, their resolution often calls for problem-solving beyond the analysis of appellate decisions that characterizes most law school instruction. This course endeavors to prepare students for their roles as creative problem solvers. It focuses on these issues, among others: understanding a probabilistic factual world, including assessing correlation and causation; making decisions with tradeoffs under conditions of uncertainty; understanding individual and social phenomena that can conduce to or impede effective decision-making.

My problem, of course, is that articulating what I want to do and actually figuring out how to do it for 4 sections of approximately 50 first year law students are two entirely different things.

It all started with Washoe, the first chimpanzee to learn sign language to communicate with humans. When there came a time Washoe was going to be sent off for animal testing, Victoria Bjorklund, a lawyer, wanted to set up a trust and appoint a guardian for Washoe. The problem was that New York law only permitted the appointment of guardians for a “person with a disability.” As the New Yorker explains:

[Bjorklund and her colleagues] argued that “the mental, emotional, sociological, and biological characteristics” of Washoe and the other chimps “warrant their treatment as persons” entitled to representation. The lawyers submitted affidavits from such animal experts as Jane Goodall, who said that “chimpanzees are biochemically closer to humans than they are to any other of the great apes.” According to the brief in the case, the chimps “are capable of rational thought, communication, and other higher cognitive functions,” justifying their treatment as the legal equivalent of minors or disabled humans. In a 1997 decision, the surrogate of Nassau County agreed and appointed a guardian to administer the trust for the benefit of the chimps. “That trust was then respected by the State of Washington, where Washoe lived,” Bjorklund said. “We think it was the first trust ever established for the benefit of specific nonhuman primates.”