Is law a creative profession?
Tuesday, April 13, 2010 at 7:37PM A combination of two things inspired me to ask the question.
Jay Shepherd started me thinking about it by asking whether lawyers are artists or labourers. His post started me thinking about creativity, but it isn't actually about that, but about whether lawyers should be paid by the hour for their labour, or whether like artists they should "get paid by the result — by their creation".
The concept floated around in my mind until a few days later, when I was re-reading Stephen King's On Writing - a memoir of the craft.
Available on Amazon here, this is King's book about his "day job":- language and writing. I like Stephen King's writing so I was an easy sell for this book. I am fascinated by his description of the writing process, but I also think it is a useful little style guide for any writer.
This is the third time I have read it, but the first since I started writing this blog. It struck me that most of his guidelines are relevant to bloggers.
"Omit needless words" (taken from The Elements of Style) is a good starting point, but follow that up with:
"If you want to be a writer [or blogger], you must do two things... read a lot and write a lot."
I don't know if King would look down on bloggers (I hope not, but On Writing is a great resource for them regardless), but my own view is that blogging can be classed as creative writing.
Wikipedia defines creative writing as that which "goes outside the bounds of normal professional, journalistic, academic, and technical forms of literature...".
Some legal blogging is basically professional literature, but the more interesting blogs I read definitely meet this test:- they step outside this to play with ideas, concepts and language in a way that a law firm press release or legal update would not.
More importantly to me it just feels like a creative process in the way which drafting a Share Purchase Agreement (for example) doesn't. It's hard to say why this is. My gut feeling is that despite the absence of plot and characters you are still pulling together strands of an idea from somewhere and communicating it to your audience as best you can.
One thing I have learned is that being an expert in legal drafting does not help your creative writing. There is a lot of legal drafting and writing out there which is just plain bad, but even the good stuff tends to be focused on precision, certainty and avoiding risk rather than any kind of style. Not that this is a bad thing (this is what we are getting paid for), but it doesn't encourage creativity and it can make it hard to switch gears and write in another style.
I wonder if this is why lawyers (or some of them at least) seem to be such enthusiastic bloggers... it gives us an outlet to write more creatively without having to worry about how our language will be interpreted by a Court?
I would love to hear from some other legal bloggers on this.
Is this kind of creative freedom a factor for you, or is your blog just another aspect of your marketing? Or do you think that law is a creative profession already... that drafting that perfect clause or finding an elegant solution to a client's problem is quite satisfying enough?
Reader Comments (13)
Very interesting blog.
I am not a solicitor and have no legal background, (I don't think an 'A' in O Level Law counts). But the precision argument that you refer to is important.
As a client I go to a solicitor because they know things, implications and consequences that I don't. That is what I am paying them for. They are experienced and will know the main issues in much the same way that I know the concerns of a law firm when I present my technology...the patterns.
The 'expert' exists to provide the expertise.
I am more than happy to pay for this knowledge because it is a 'value' purchase rather than a 'price' one, although in the case of the latter it has to be reasonable which is down to how it is explained and conveyed to me.
Once you use price as your key driver for business then the clients will follow you and fail to understand the value.
As a client I have no knowledge of the artistry involved. For all I know you could be drafting it on a standard system. But if the artistry becomes so pedantic that it starts to have a negative effect on the price then I would be concerned. Is it 'good enough' and if not what has to happen to make it so...am I, the client, having this explained to me? If not then the value is starting to decline rapidly.
I am buying 'it' from you because you are eliminating the risk for me. Explain risk, with maturity, because risk is personal to me.
I read a lot, or see suggestions that the client doesn't appreciate what is being done by a solicitor. Why should they? Do I appreciate the growing, cutting, transporting and packaging of coffee that I buy from Waitrose? No not really but I know Waitrose sell good coffee, bit more expensive but fine coffee. Am I prepared to pay for that value? Yes, but some won't. Waitrose is about attracting those customers who appreciate their value, rather than all customers.
As to blogging. Ultimately it is not about style of presentation. I blog >500 words because that is my mind set. But I read some excellent blogs, (this one for example), that are far longer, more considered and of equal if not more value to me.
Content, as they say, is king, and in blogs that is what makes them successful or not. I liken content to your virtual personality. Language, what you type, can convey so much about you. It is rich individual, revealing and engaging.
In life everything finds its depth.
My view is that creativity is an essential ingredient to excelling at any profession or task; a spark of genius is all about bringing an element of knowledge learned in one environment into a completely different scenraio, applying it and creating something new and fresh.
You don't have to be creative to be a good lawyer, or even to be a very good lawyer; but to be a great lawyer, one that finds a solution to a problem clouded with regulations and obstacles, you do need a creative flair.
As a commercial contracts lawyer I "create" a lot of documents (some of them even contain sparks of creativity and academic genius, at least in my humble opinion) - but generally speaking I'm the only one who appreciates those sparks. I don't expect anyone else to admire my contracts in that way, artistic appreciation isn't what my clients need me for, they just want a Confidentiality Agreement or a Services Agreement (preferably on 2 sides - although some creativity is required in drafting a 2-sider I can tell you!).
However, I don't think I'll offend too many lawyers if I say that legal documents are generally speaking uncreative and uninspiring items. We're also a profession guided by process and the "right way of doing things". As we don't have too many opportunities to unleash our cretive spirit, blogging certainly provides an outlet for those of us who want to show the world our individuality and what makes the way we apply our legal skills and creativity differently to other lawyers.
Good, thought inspiring post Jon.
Interesting post.
I certainly feel a need to be creative and have put a great deal of effort into aligning that creative urge with professional ends.
Social media offers opportunities for law firms to engage with and encourage creative types within their firms. Give them the skills and opportunities not only to write on blogs and the like but also create video and contribute to social media campaign design.
Get your creative types to present or at least co-author and shape other colleagues presentations and slides.
Some examples of my work can be seen on Mogerstv (search for it on Google or YouTube), and I also talk about creating video on this Blogtalkradio show;
http://bit.ly/atvMqm
The fact that I can turn these creative efforts to a marketing end is a happy by-product.
Law isn't particularly creative, as you're generally operating within a pre-determined framework within which you have to comply. I suppose the main element of creativity comes when creating solutions for clients' problems. There is of course a wide spectrum of work that comes within law and some is indeterminably dull (page turning a DD bundle) to interesting, and allowing you to be creative to a certain extent.
However, I wouldn't call lawyers artists. Artists, in the purest sense of the word, create something from their own imagination. A secondary purpose to this, unless you're Damien Hurst, is to then potentially seek to sell your produce to a third party.
Lawyers on the other hand, adhere strictly to a client's wishes and the legal framework within they must comply, notwithstanding that elements of creativity can be injected when the need for novel solutions arises.
When it comes to lawyers charging for their work, hours are the only quantitative method of measuring value. Further, lawyers being the egotists that they are (and I speak as one), if they do seek a value based method, will generally charge an uplift where a satisfactory/positive result is obtained, and seek to blame a negative or undesirable result on other parties, falling back on hours spent on the file.
I don't think any lawyer would ever ask a client how much they want to pay for their services on the basis of the value provided. Nor would any client want to wait until the end of a transaction to be told that the lawyers are charging x because the lawyers did a ruddy good job!
Fixed fee arrangements and their increasing use on the other hand, are a different subject entirely.
Great post - very thought provoking.
I do think that most lawyers are creative people. As you point out in your article, however, many do not feel that they have an outlet for that creativity in their working day. Litigators are perhaps more fortunate in this aspect. I agree with Melanie - the great lawyers are the ones who can use their creative thinking to arrive at an unusual outcome for their clients - in consulting-speak, they are able to add true, unique, value.
Like Jon I am not a lawyer (I don't even have the O-level). My experience, instead, is in general management and (now) in consulting. I find both of these to be creative outlets for me. I use my blog as a way to organise my thoughts on a subject - and, occasionally, as a way to let off steam. It is, of course, also a marketing tool, although I prefer to think of it as a way for potential clients to see what sort of person I an and what sort of opinions I hold. I recently lost a pitch because one of the lawyer interviewing me disagreed with a blog posting. Irritating as that was at the time, it is probably good that he had an opportunity to find that he did not like my style or opinions before we had gone any further in the process. Happily it can also have more positive benefits!
Fascinating post and discussion.
Being in the process of moving from a personal law-related blog to blogging on my firm's website, I'd agree that it is an enjoyable outlet for creativity and blogging on legal issues in an imaginative and interesting way is challenging.
But, surely legal drafting does involve creativity. OK we may be working within predetermined parameters, but the best legal drafting, for example the most effective contractual clauses, often shows real craftsmanship. I’d even say that legal correspondence is a lot like creative writing. A solicitor’s letter can achieve very different results depending not just on its basic contents but on how those contents are presented. Powerfully composed letters of complaint can achieve far more than a dry communication. I think many lawyers underestimate the power of language. Is language not, after all, the tool of our trade?
As for lawyers charging for an end "artistic" product, it puts me in mind of the story about Picasso. When stopped by a passer-by who asked him to sketch her, he did so, and then told her his fee for the piece. "That much? But it only took you a few minutes". "No Madame", replied the artist, "It took me a lifetime".
There are some really insightful comments on this thread and after reading Jay Shepherd's original blog on this topic a few days ago I thought this would generate wider discussion, especially in light of the growing commoditisation of law. I particularly agree with the post above by Catrin as I have seen how correspondence that is meticulously drafted with the right tone and arguments can have a vastly different impact than correspondence with otherwise similar content.
In the wider sense of the word, I have also seen how clients are prepared to pay a big premium for the value provided by a lawyer's creativity. In one example, I witnessed how a partner at a City firm negotiated payment for a matter where the settled invoice was over three times the amount of 'time on the clock' (i.e. time spent x hourly rate). The client was only too happy to pay because the lawyer had effectively originated and structured the deal (and given priority to the client in terms of workflow) which the client had earned millions in commission from. The corporate financier client was grateful that the lawyer had taken him under his wing and allowed him to leverage the lawyer's superior network and knowledge and was keen to secure similar opportunities in the future.
Thanks very much for your comments... I didn't expect this post to spark so much discussion, but you never know what will hit a nerve!
One common thread in many of the comments which I hadn't considered was the creativity involved in drafting that really elegant clause or phrasing correspondence in just the right way to be persuasive and get the result you want.
I guess there is creativity in these things as there is in doing most tasks really well... "Zen and the art of contract negotiations?"!
I have always felt that the essence of a lawyers skill is a way of thinking, which draws on our knowledge of the law (but is much more than that), and which we use to solve people's problems. It is something which takes years of practice and study to learn, and is a very satisfying thing to be able to do. However although it could be described as creative, it is not really what people mean when they talk about creativity.
Its a bit like having a legal radar in your head.
As lawyers, the tools of our trade are words. We speak them, write them, read them and interpret them. Again, this is not really the same as creative writing. In fact many of us are dreadful writers, unable to get away from legalese or turgid phraseology.
So when I write my blog, am I being a lawyer or being creative?
I think that there is a creative side to it. Although a lot of what I write is aiming to help people, it is not written to solve a particular problem. The article has to be reasonably well written or no-one will ever read it. I enjoy considering the words, trying to balance the phrases. It is very satisfying.
There is also another side to it - the presentation side. The design of the blog. Choosing the picture to go with the post. Ordering the words on the page - some in bullet points, some in quotes, so it will be easy to read and pleasant to look at. This is important if you are presenting something to the public. I suppose it is craft.
So yes I think it is creative and it is different from legal work. And I think it is worth doing, for its own sake. In fact in the new world of social media in which we find ourselves, I understand that better results come anyway from writings which are written out of interest or to help people, rather than in a relentless marketeering fashion. So maybe we are doing the right thing (or do I mean the write thing?).
Thanks for a very interesting post Jon. And interesting comments to follow.
Thanks Tessa - very interesting comment.
I like your point about how this all ties in to using social media effectively... it is a different style of writing and communication than we are generally used to as lawyers, but I think that making the effort to "break the mold" and communicate in a more creative way helps with writing more traditional material (press releases, website articles etc.) too.
Craft is probably a good description as well - interestingly it is one which Stephen King uses a lot in the book which inspired my post (in the title for starters!).
Glad you enjoyed it anyway - I have found everyone's comments very thought provoking.
Just starting out I am enjoying the chance to be creative with my drafting attempts, not creative in the sense of being outrageous or anything, more being logical, practical and thinking outside the box. A great opportunity to get a bit competitive with colleagues. At this stage I think it is more of a craft than anything, something that builds with experience, but doesn't hurt to take a fresh look every once in a while.
That said blogging is an outlet for creativity, a chance to relax and express yourself in a more carefree way - which for many people is the appeal. But I do think lawyers are creative in their own right, but it is down to the individual - not the profession. Otherwise we'd all be blogging.
It's late but I couldn't resist popping by to see how the discussion evolved.
Now my brain is whirring with all kinds of questions.
Does creativity enable us to demonstrate value or does it, of itself, add value? And to who? (or should that be whom?)
Does creativity alone have an intrinsic value?
Is creativity competence based? Surely not, but competence/excellence and creativity combined is a powerful force for making real value apparent to the consumer.... does that enable us to charge a premium?
Great discussion. Nice one Jon.
Jon
I am not sure I fully agree that there is such a dichotomy between the artist and the labourer.
Artists get paid for commissions and I am quite sure that when they price their work they have assimilated the amount of time that it will take them - therefore there is an hourly rate quotient at work.
The bigger issue, and your point is very well made, is whether there is a rubber stamp applied to lawyers' drafting which assimilates everything under the umbrella of this precedent or that standard document so that the creative passions and juices are literally stymied before they are even given a chance to blossom.
All humans are creative creatures and it is very unhelpful that any nuanced drafting that reflects a lawyer's proclivity in one area or another should not find an outlet in the drafting.
Letters and other missives tend to be a better place for openness but as a litigator of some 14 years, what you tend to see is a lot of rather childish and point scoring commentary creeping in rather than creative drafting.
I certainly think there is a place for more creativity but at the moment I don't think the profession is ready to let go of its rather tired and mildly depressing way of dealing with things.
Julian