Be creative? Question Authority. Even the CIA thinks so.

Who would’ve thought that the Central Intelligence Agency — often ridiculed by describing its name as an oxymoron — might have such useful resources on creative thinking and problem solving. A chapter on “Keeping and Open Mind” from The Psychology of Intelligence Analysis, sums up the attitude and mind-set any lawyer and law student must cultivate to address the problems they face, problems that — due to the infinite variety of human experience — cannot be solved by merely finding and applying rules:

Creativity, in the sense of new and useful ideas, is at least as important in intelligence analysis as in any other human endeavor. Procedures to enhance innovative thinking are not new. Creative thinkers have employed them successfully for centuries. The only new elements–and even they may not be new anymore–are the grounding of these procedures in psychological theory to explain how and why they work, and their formalization in systematic creativity programs.

Learning creative problem-solving techniques does not change an analyst’s native-born talents but helps an analyst achieve his or her full potential. Most people have the ability to be more innovative than they themselves realize. The effectiveness of these procedures depends, in large measure, upon the analyst’s motivation, drive, and perseverance in taking the time required for thoughtful analysis despite the pressures of day-to-day duties, mail, and current intelligence reporting.

A questioning attitude is a prerequisite to a successful search for new ideas. Any analyst who is confident that he or she already knows the answer, and that this answer has not changed recently, is unlikely to produce innovative or imaginative work. Another prerequisite to creativity is sufficient strength of character to suggest new ideas to others, possibly at the expense of being rejected or even ridiculed on occasion. “The ideas of creative people often lead them into direct conflict with the trends of their time, and they need the courage to be able to stand alone.”

The making of a lawyer

Most law schools are odd places.  I suspect most people outside the law believe a law school’s principal mission is to train lawyers.  I am a law professor, and I happen to believe that too.  But I am a very odd duck within law school academia.  Practice for twelve years and partnership in a top nationwide firm is of very little value as a qualifaction to be a law professor.  Rather, the valuable assets among law school faculty are articles published in journals edited by students and rarely read by lawyers.  Most law school classes address theory (or “doctrine”) in a manner remarkably removed from its real world application.  Qualifying for law school rests to a significant degree, perhaps primarily, on an applicant’s score on the LSAT test, which may correlate to success in law school but bears little relationship to one’ effectiveness as a lawyer.  To add to the gap between law school and legal practice, the principal criterion underlying the rankings on which law schools and applicants rely to rate the quality of a law school is the median LSAT score of the school’s students.  Those rankings provide a tremendous incentive for a law school to act in ways intended to accept applicant’s with higher LSAT scores — scores that don’t correlate to effectiveness as a lawyer — at the expense of acting in ways that increase the effectiveness of its graduates as lawyers.

So I am thrilled to read in yesterday’s New York Times that professors at the University of California, Berkeley, have studied what makes lawyers (not law students or law professors) effective and “have come up with a test that they say is better at predicting success in” practicing law than is the LSAT.  The study concluded, as I’ve long been convinced, that “LSAT scores . . . ‘were not particularly useful’ in predicting lawyer effectiveness’. . .”  What does the new test consider factors that contribute to lawyerly effectiveness?

“[T]he ability to write, manage stress, listen, research the law and solve problems.”

I am also not surprised to read that the new test is no better than the LSAT at predicting how well participants would do in law school.  As I wrote above, there is far too great a gap between most law school instruction and the actual practice to consider a test that measures effectiveness in the latter able to test effectiveness in the former.

I wish all my students would read this post.  They’ve been dealing with a considerable degree of stress of late that they blame on me and the problems I’ve given them to try to solve — problems that are down and dirty real life problems lawyers face — and they’ve been complaining a lot.  One student in my Contracts course yesterday complainied that online discussion boards made clear to him that students at other schools were covering a lot more “theory” than I am.  I looked at him a little in surprise.  That’s the whole point of my teaching.  And it’s the whole point of the rather unusual curriculum at the school where I am a visiting professor, the University of Detroit Mercy Law School, where it has been recognized that theory and practice are inextricably intertwined and that each can only be understood in the law in relation to one another.  Thus, the school offers a “revolutionary new curriculum . . . [that] complements traditional theory- and doctrine-based coursework with practical learning, providing a solid transition between law school and a legal career.

But it’s hard to teach students to manage stress, listen, and solve problems.  First, it mean subjecting them to the stress of solving problems they do not know the solutions to in advance because what lawyers do is solve problems they don’t know the solutions to in advance.  No one enjoys stress.  I like to think that the students realize the stress I am subjecting to them is not one intended to or that will break them.  It’s school.  As I’ve always told them, in law school we hurl you into the water to see if you can swim, but the water’s only about 4 feet deep, so when you can’t swim, you just get on your feet, come back, try to figure out what went wrong, and then try again.  It’s when you’re a lawyer trying to solve problems you don’t know the solutions to in advance that the stress can be truly overwhelming, especially if you have not been at all prepared for it.

Good lawyering means never being satisfied with one answer.

At Drinking Song, the blog of an advertising copy writer turned law student, John Johnson has developed a theory that proves to me he’s ahead of the game: “a good lawyer needs to do just as much-if not more-creative thinking as any Madison Avenue soap huckster.”  Even more importantly,

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.

How do lawyers solve problems? Any and every way they can.

What problem do I need creative solutions to? I’m designing a course for the school I’m visiting this year that is intended to bring together for the first year students everything they’ve been learning in all their courses in a way that teaches them to solve problems the way lawyers do. How do lawyers solve problems? The following description, from a course intended to do similar things at Stanford, says it well:

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.