In The Cult of Creativity: A Surprisingly Recent History (2023), Samuel W. Franklin concludes that the protean idea of creativity
“served as a psychological fix for the structural contradictions of postwar America. It reconciled a newfound individualism. . . with the seemingly incontrovertible facts of mass society. . . . [I]t represented excellence against mass mediocrity but also the democratic potential of an open society; it represented dynamism and innovation without being anarchic; and it stood for a much-needed shot of humanism into a world of engineers, while fundamentally endorsing innovation, consumerism, and economic growth. . . . [I]t fused productivity with self-actualization, enabling the return of an older bourgeois producer ethic, albeit in a softer, more psychological, and somewhat feminized form, in a consumerist era.”
On a more operational level, to lawyers and law students, who are trained (or training) as professional problem-solvers, creativity can take many forms, including:
● Identifying and/or introducing new issues, arguments, contract provisions, processes, technologies, and fields (or subfields) of practice.
● Adapting, individually or as part of a team, traditional legal practices in an innovative way to resolve a client’s transactional or litigation concerns, especially under conditions of crisis and/or constraint (of time and/or resources).
● Actively participating in, while helping to advise on (and, often, revise) a client’s business operations, perhaps as a Chief Legal Officer (a title/position that some corporations have adopted in place of their previous, General Counsel).
(Boards of directors might, in considering candidates for any “C-Suite” officer, see an analogy to longtime Saturday Night Live producer Lorne Michaels’ comment, to New York magazine in 2014, that when casting new members of that ensemble, “[Y]ou’re always looking for the sense of humor. There are a lot of very good comedy performers with very little sense of humor. It’s skill, and they’ve learned it the same way that a magician learns tricks. They’re fine, too, but we need a different thing. It’s better if they can create comedy as opposed to execute comedy.”)
● Developing new ways to effectively present and explain issues, to clients, counsel, courts, and other constituencies (as well as to the media).
● Engineering new alignments of clients, or potential clients, with common interests in traditional or emerging issues.
● Constructing new methods of marketing to existing clients. (Franklin observes that “since at least the 1920s” the advertising industry distinguished between its “creative” and “accounts”/sales representatives. Although the distinction might seem loosely analogous to that between some law firms’ “service partners” and some of their client-generating colleagues, many if not most “rainmakers” are also prized for their legal prowess.)
● On a personal level, inventing techniques and practices to establish and enhance professional productivity (for instance, in assimilating large amounts of information) and/or work-life balance, possibly by incorporating “creative outlets” like painting, or writing poetry.
Of more practical value to lawyers and law students than music producer Rick Rubin’s much-ballyhooed The Creative Act: A Way of Being (2023) might be one or more of the following resources:
● Edward de Bono’ Six Thinking Hats (1999) provides techniques for examining problems and proposals from six different perspectives, while wearing metaphorical hats colored: white (“concerned with objective facts and figures”), red (“the emotional view”), black (“point[ing] out the weaknesses in an idea”), yellow (“hope and positive thinking”), green (“creativity and new ideas”), and blue (“control, the organization of the thinking process, and the use of the other hats”).
This technique is one of several discussed in de Bono’s Serious Creativity: Using the Power of Lateral Thinking to Create New Ideas (1992), whose appendices provide thought-provoking summaries of “The Lateral Thinking Techniques”; notes on their use; a checklist to help “harvest. . . all the creative value that has emerged during a creative thinking effort by an individual or by a group”; and a checklist for the “treatment,” or further improvement, of the ideas generated in such a session.
● The cards in the Creative Whack Pack™ Deck (2002) display Roger von Oech’s “64 Creativity Strategies to Provoke and Inspire Your Thinking.”
Based on von Oech’s book, A Whack on the Side of the Head (1993), the cards are evenly divided among the strategies of: The Explorer (to “highlight places and ways to find new information”: for example, “What patterns in nature can you borrow?”); The Artist (for “idea-generating techniques”; e.g., “What can you rearrange?”); The Judge (for “decision-making advice”; “What can you take less seriously?”); and The Warrior (to “give you the ‘kick’ you need to get your ideas into action”; “What surprising tactics can you use to reach your objective?”).
● The gnomic aphorisms of sixth-century B.C.E. philosopher Heraclitus, of whose work von Oech notes in his book (in which he reproduces thirty of those statements), “It’s as though each of his ideas is a creativity exercise that we have to solve in order to get its meaning. To understand him, we have to adopt a frame of mind in which we tolerate ambiguity, view things metaphorically, challenge our assumptions, reverse our expectation, and probe below the surface for hidden meanings.”
● Each of the thirty-nine chapters of Michael Michalko’s Thinkertoys: A Handbook of Creative-Thinking Techniques (2nd ed. 2006) “contains a blueprint that gives precise instructions for using [its] technique and an explanation of why it works.”
For instance, Chapter Nine discusses the SCAMPER (Substitute; Combine; Adapt; Modify/Magnify; Put to another use; Eliminate; Reverse/Rearrange) method, to which Michalko’s fifty-six-card Thinkpak: A Brainstorming Card Deck (2006) is devoted.
● Herbert Lui’s Creative Doing (2022) provides seventy-five techniques “focus[ed] on quantity (doing as much as you can), quality (improving your abilities and honing your taste and style, and purpose (knowing who you are creating for).”
● The Innovator’s DNA: Mastering the Five Skills of Disruptive Innovators (2011), by Jeff Dyer, Hal Gregersen, and Clayton M. Christensen, includes a useful section on “short- and long-term exercises,” including SCAMPER, to “strengthen your capacity to think different and weave together unexpected connections across ideas.”
One recommendation: “Start a collection of odd, interesting things (e.g., a slinky, model airplane, robot, and so on) and put them in a curiosity box or bag. . . . Then, you can pull out unique items randomly when confronted with a problem or opportunity (and if you’re really daring, display them on your office shelves).”
Other tips involve methods of generating questions (including a group technique that the authors dubbed QuestionStorming), and of exposing oneself to new sources of information to broaden one’s observational or “experimenting” skills.
● In Creativity, Inc. (2014), Ed Catmull (with Amy Wallace), the co-founder of Pixar Animation Studios and president of Pixar Animation and Disney Animation, provides, in addition to illuminating accounts of Pixar’s development and production processes, a bullet-pointed list of thirty-three plain-spoken “Thoughts for Managing a Creative Culture.” (For instance, “[I]t is not the manager’s job to prevent risks. It is the manager’s job to make it safe to take them.”) Catmull cautions readers to “think of each statement as a starting point, as a prompt toward deeper inquiry, and not as a conclusion.”
● Julia Cameron’s The Artist’s Way: A Spiritual Path to Higher Creativity (1992), famously introduced the practice of “Morning Pages” (writing daily “[t]hree pages of whatever crosses your mind—that’s all there is to it”); and also emphasized the “Artist Date” (“a block of time, perhaps two hours weekly, especially set aside and committed to nurturing your creative consciousness, your inner artist”).
● Mathematician George Polya’s classic How to Solve It: A New Aspect of Mathematical Method (1945) can be valuable even to non-mathematically-inclined readers, particularly for the two pages in its introduction that identify the subsidiary elements of the four stages of Polya’s approach: Understanding the Problem; Devising a Plan; Carrying Out the Plan; and Looking Back.
● A stack of blank index cards.
In my own book, I recommend that law students make their own flashcards “to capture and organize the sometimes-disconnected pieces of information you’ll be receiving. . . [E]ven if you also buy commercial flashcards (which are available for the standard first-year courses), making at least some cards of your own will help you further personalize and internalize the material.”
Similarly, combining items from the above collections, with others that you might come across or invent yourself (or perhaps as part of a law school’s “Legal Creativity Reading Group”), could enable you to more quickly “break out of the pack(s).”
● The recent clarification of “failure,” by Milwaukee Bucks power forward Giannis Antetokounmpo.
● The recent (re)definition of “success,” by comedian Alexis Gay.
As television’s (original, Richard Dean Anderson) MacGyver, whose name has become a synonym for the exercise of impromptu creativity, said, “I think if you try hard enough and make the best of a situation, the situation won’t get the best of you.”
