Alberta Lawyers' Assistance Society

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Creativity in a Profession Ruled by Precedent--Why You Should Watch Lawyers versus Talent A2J: The Virtual Edition

Before I went to law school, I was an interesting and creative person. But somewhere on the line of learning to think like a prudent and careful solicitor, I lost touch with my personal creativity. As lawyers, we use particular types of creativity to solve issues, but this is a small subset of the creativity we innately have. Frequently, the price of achieving excellent creative problem-solving skills is at the expense of what I am going to call personal creativity.

As adults, we tend to remember elementary school where we did art, music and creative writing but most of us have moved away from these activities.

Creativity has become a buzzword in modern design thinking. Canadian coach and founder of Creativity At Work, Linda Naiman, defines creativity:

Creativity is the act of turning new and imaginative ideas into reality. Creativity is characterised by the ability to perceive the world in new ways, to find hidden patterns, to make connections between seemingly unrelated phenomena, and to generate solutions. Creativity involves two processes: thinking, and then producing. 

Law has not embraced creativity the way other disciplines has.

Law school education involves training us to use logic—largely analogical reasoning-- and to develop a strong framework of legal principles to fence in our solutions. (See “Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal Education” by Judith Weinstein and Linda Morton 9 Clinical Law Review 835 (2003)). Traditional law school curricula do not teach creative thinking. The intense focus on reasoning and precedent arguably counteract our creative spirits.

As lawyers, we use creativity in the design thinking model, but we overlay our creativity with the constraints inherent in the legal realm. We don’t get to create innovative new tort claims just because we can find hidden patterns in a series of events and losses—we have to fit our client’s claim into an existing tort. As lawyer and writer Jeff Bennion says, it usually doesn’t end well when the judge comments on the creativity in your pleadings https://abovethelaw.com/2016/11/can-lawyers-be-creative/).

I can attest to the limitation on creativity in corporate law from my early years in practice where one of my favourite activities was working on prospectuses—full, true and plain disclosure and all of the securities commissions policies and rules resulted in a narrow framework in which we could present our clients’ business (and rightly, so.) I found much greater opportunity for creative problem solving when I moved into corporate human resources law. Files often started with a manager who wanted to fire an employee. Discussion went something like this:

Manager: Joe has been a problem for years. He is lazy, he is late all the time and makes a lot of errors.
Me: What performance management have you done?
Manager: I haven’t ever talked to him about his performance. I don’t want to hurt his feelings.

There was just so much room for creative strategies, it was like falling off a log, but we were still very much in the realm of employment law and budget realities.

Creativity is critical to us as lawyers for at least two important reasons.

First, our justice system is overburdened, and closing courts during the Corona virus lockdown will only exacerbate the problems. Litigation is expensive—beyond the means of many potential and actual litigants—and it takes years to move matters through the courts. Alternative dispute resolution is an example of innovative thinking, and we are going to need more innovative solutions, grounded in some legal theory, to address the backlog.

Secondly, personal creativity is connected with resilience, and we are all going to need resilience as we continue to be impacted by social distancing and as we head into whatever the post-Phase 1 world is going to look like. As lawyers, we are often too busy to indulge in creative pastimes, but we need to focus on activities that make us feel whole, now and going forward.

With this framework in mind, here is a big shout out to everyone who participated in Lawyers vs Talent A2J: The Virtual Edition. The show aired on July 16th through a secured Vimeo link to people who donate at least $50 to the United Way (Edmonton, Red Deer and Calgary) to support access to justice initiatives.

It is hard to define what Lawyers vs Talent is—it is part fundraiser, part variety show, part legal futures ideation. It is the brainchild of Donna Purcell QC and Alberta Civil Trial Lawyers Association. While many of us were hunkering down in the early days of the pandemic, Donna and the ACTLA folks were concerned about access to justice and the impact that a lockdown on the justice system would have on our society, particularly the disadvantaged population. I don’t know how these concerns came to be united with a talent show but I bet there is a story. However, if you are maxing out on Netflix and are looking for something different, please check out L vs T’s website: https://www.lawyersvstalent.com/

The show is professionally hosted, edited and produced, and it includes short segments from Justice Russell Brown of the Supreme Court of Canada, Retired Justice John Major (SCC as well), Nonye Opara from Pro Bono Law Association, and two Canadian lawyers with incredible stories of resilience and hope, Maria Mitousis from Winnipeg and Rumana Monzur from Vancouver.

The acts, both from the Talent team and the Lawyers team, are fun and entertaining. I loved seeing so many members of our legal community sharing their creativity.

As we head into yet another cool and potentially wet weekend, why not gather with your bubble group and enjoy an evening reminiscent of old tv variety shows, donate to a good cause (because giving to others builds positivity) and think about what you can do to get in touch with your inner creativity?

I hope that there will be a 2021 version of Lawyers vs Talent with even more creative lawyers working to support access to justice and innovation in the delivery of legal services.

Loraine