“Where Creativity Goes to Die”

If “the critics” are to be believed, there are worse things to watch on TV than CBS’s The Good Wife. In a recent episode an internet entrepreneur was walking through main character’s law firm offices – which I imagine are quite similar to most well-established law firms throughout the country – and stated: “So, this is where creativity goes to die.”

On one hand, I feel vindicated that someone outside the legal profession validates my perspective that creativity is in short supply among lawyers. On the other hand, I’m surprisingly defensive about my profession: it’s perfectly OK for me to point out the legal profession’s shortcomings but not for screenwriters to do so.

Regardless, it may not only be screenwriters who agree. In a May interview, a newly published author and former management consulting colleague of Mitt Romney’s, Edward Conard, echoed a similar sentiment.

While his ultimate premise is that innovation and investment therein constitute a virtuous cycle leading to greater societal wealth, he emphasizes the vital role of creativity and the assumption of the significant risk associated with the innovation process.  Conard is highly critical of those who “sit on the sidelines” opting for a more stable profession instead of joining the ranks of creative innovators assuming risk and striving to increase societal wealth.  Perhaps somewhat surprisingly, Conard includes lawyers in that group.

Let me first say that there’s no doubt that lawyers have significantly contributed and continue to contribute to society in many meaningful ways: the criminal legal system, civil rights, and countless others.

Nevertheless, Conard’s assertion is provocative for two reasons: First it can’t be denied that a large percentage of lawyers are not actively engaged in innovation, creativity, or risk but rather the management of the benefits reaped by others’ creativity, innovation, and risk. While it’s easy to dismiss Conard’s position and broader model as one person’s opinion it should give the profession pause that someone who has probably worked with some highly skilled and competent lawyers in his professional experience suggests that lawyers don’t really contribute to increasing the greater social wealth.

Second, whether or not you agree with Conard’s sweeping categorization of lawyers as “sideline-sitters”—in Conard’s definition, those who leave the hard work of risk and its associated creativity, innovation, and wealth creation to others favoring instead to manage the wealth that the risk-takers have already generated —it’s  important to consider the lawyers’ place in the model Conard creates. If, as Conard argues, the US economy will increasingly be (or is today) driven by those who undertake risk and engage in creativity and innovation for the greater social good/wealth, are lawyers prepared to contribute to that system?

The specifics of what lawyers might contribute or how they might do so are unclear but changes in legal education, bar associations, and even in the private sector are already attempting to capture this emerging movement.  For example, the Program onLaw and Leadership at the Moritz College of Law at Ohio State University (a program in which any law student at Moritz is permitted to participate) exposes students to classes like Creativity Skills and Practice, Personnel Psychology, and Theorizing Performance (a course in advanced introduction to field of performance studies; theory and practice of expressive social behaviors, including theatre, dance, ritual, sports, and embodied practices of everyday life).

Similarly the Supreme Court here in Washington will soon be voting to adopt Continuing Legal Education rules that permit lawyers to earn “development credits” for practice development, professional resilience development, law office transition, and other related topics. While “creativity” is not a directly-named, approved topic, by expanding the spectrum of topics for which credit can be received, the bar is enabling its lawyers to think more comprehensively and expansively about their practices and their profession.

A final example also comes from the Seattle area. Seattle University School of Law Professor Paula Lustbader has been spearheading a series of continuing legal education seminars to “Restore the Promise of Civility” in the legal profession. The seminars, which Professor Lustbader coorganizes with  a third party and are hosted in Tuscany, are based upon the premises of consciousness, creativity, and community, and they incorporate alternative dispute resolution, cultural learning and creative expression, among many others, directly into the curriculum.

Lawyers that embrace these skills and are equipped to service a clientele that is increasingly flexible, innovative, and risk tolerant will be more successful in the emerging economy.

More broadly, it is true that law firms may never have the frenetic energy of the start-up garage or  the quirky inspiration of artists’ creative space. They may not even change all that much in the coming creative century. That said, lawyers must embrace new ways of thinking in order to counter the growing public perception that law firms are old, tired, and inflexible places where “creativity goes to die.” If the legal profession fails to think more comprehensively, enterprising clients will view lawyers not as trusted advisors providing indispensable advice but, instead, as sideline-sitters whose advice is outdated, too conservative, and, ultimately, irrelevant.