Law in Contemporary Society
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Paper Title

Creative Lawyering

-- By AndresOFarrell - 27 Feb 2009

Truly Creative Lawyering

1. Holmes defines lawyering as “the prediction of the incidence of the public force through the instrumentality of the courts”. To him, the role of the lawyer is mainly focused on the anticipation of what the courts will do in fact, which he identifies as the law itself (in this sense, he refers to the “body of dogma or systematized prediction which we call the law”).

From this standpoint, then, society judges a lawyer’s work against the accuracy with which he or she can calculate the most likely behavior of a court of law under a given set of circumstances, in much the same way as the stock price of publicly traded corporations serves as a report card for the projections of a securities analyst.

I disagree with this view of the legal profession.

2. Predictability is, indeed, a highly desirable commodity in any legal system. In this sense, all agents in a given community need to know and understand which conducts are allowed, which conducts are forbidden and under which specific circumstances might their actions trigger a punitive response from the state. No society has ever matured, no economic system has ever flourished without guaranteeing a minimum level of certainty as to the governing regulatory environment and the contours of the public force. In this context, the lawyer does in fact assume an important part in observing, understanding and predicting the behavior of those in charge of interpreting and applying the law. However, reducing the role of an attorney to that of a legal prophet overlooks a critical -if not the quintessential- component of the business: creativity.

3. Human relations are intrinsically dynamic and they are changing at an ever increasing pace. Distances have shrunk, information is more readily available, communication is virtually instantaneous, markets have become global and a great share of the world’s assets is now intangible. Thus, increasingly complex transactions are now closed with a speed and coordination that, merely a few decades ago, would have baffled even the most sophisticated financial architect.

On the other hand, lawmaking is essentially reactive. It follows change and, unable to provide detailed directives and guidelines in advance, attempts to regulate in hindsight. In this sense, passing a new law implies addressing an already existing problem, issue or practice.

And so, in a world in which these two driving forces move at radically different velocities, it is lawyers who must bridge the gap between them, that is, between the ever changing practices of human interaction and the sluggish promulgation of the parameters by which they are governed.

4. The essential role of a lawyer, then, far exceeds that of a legal analyst. Indeed, the essence of lawyering should not be defined simply by the anticipation of how courts will rule on a specific question of fact or law, but by the generation of new ideas where there were none, or the modification of the regulatory framework where the existing parameters so require. The essential calling of a lawyer is that of providing clients with innovative solutions and original alternatives where traditional legal instruments fall short of modern practices, or when the statutory setting is not receptive of the newest tendencies and business models.

In no other area of practice is this as evident as it is in litigation, where every decision made by the lawyer will be scrutinized by a court of law. In this context, an experienced litigant facing a contested issue should certainly be familiar with the legal precedents governing the case. However, the ultimate aspiration of the trial attorney should not be to abide by the existing decisions, but to obtain an entirely novel ruling that fits the specifics of his or her case. In the end, the truly landmark cases, those that are remembered, studied, analyzed and dissected for generations, are those in which the legal counsel, with new and creative arguments, is able to convince the court to steer away from its previously established line of thought on the subject.

In today’s fiercely competitive market, hungry for inventiveness and novelty, a lawyer who is just a connoisseur of the legal precedent is inevitably doomed to staleness and will sooner or later fall behind.

5. Of course, both in litigation and transactional work, the lawyer con modify the factual background of his client’s case or deal in order to accommodate it to existing legal parameters and thus, by matching it to one of these “systematized predictions”, obtain the desired ruling from the court or decision making authority.

When challenging the conduct of a board of directors, for example, a litigator may place special emphasis on certain facts that will allow him to present the issue as a breach of the fiduciary duty of loyalty as opposed to the duty of care, considering that most courts tend to be less forgiving of the latter. In a similar way, a securities lawyer may advise his client to reduce the amount of his external financing in order to accommodate the transaction to the requisites of a private placement rather than a public offering, for the former entails less scrutiny from the Securities and Exchange Commission.

This kind of legal counseling goes beyond a mere mechanical prediction of what a court will decide under the given set of circumstances, that much is true. Indeed, modifying contingent facts to fit them to the most beneficial of the existing parameters requires something more than a mathematical application of a given set of rules. So, yes, it is to a certain extent “creative”.

However, it is still nothing more than accepting the existing statutory scheme as it is presented, which defies the very notion of creativity in the sense described above.

Indeed, the very point of this essay is that rules at hand may not always provide an adequate response to the changing needs and demands of modern society. Therefore, the lawyer that modifies the factual context in order to fit his case or deal into this or that already existing rule will only obtain -in the best of cases-an apparent victory. The idea is, once again, that those regulations may not, as presently crafted, completely satisfy the unique requirements of the client.

The contention here is that creativity and not prediction constitutes the essence of lawyering, and this proposition is not rebutted by the fact that a lawyer can change the contingent details of his client’s particular situation in order to obtain a ruling that is based on an existing principle of law. This would only mean that the lawyer has to navigate within the existing legal boundaries, whereas by creativity I mean breaking past those limits.

Then, the ultimate aspiration of every lawyer should be not to accommodate his client’s needs top the existing legal background, but rather to contribute to the creation of a new rule that captures that specific set of circumstances in a unique way. This is true creativity.

6. Of course, these new ideas, these original solutions, can eventually become the norm, and they often do. Then, after the innovative exception becomes the actual rule, the sense of freshness and originality is somewhat diluted or lost, or at least it is not immediately connected to the activity of the lawyer. But it is that creative mentality that should inspire lawyers, a will not to be constrained by the rigidity of the system but to find the possibility of acting beyond it and promoting change when necessary.

What makes a great lawyer? Again, it is not finding a way –however “creative” it may seem- to accommodate the existing precedent, but making it.

  • The logic of the essay achieves victory over a straw man. The prediction of what the courts will do in fact is not, as you seem to have assumed, the acceptance of the obvious outcome. How the courts or other ultimate decisionmakers will view differently possible changes in the structure and detail of the client's activities enables one possessed of the insight to alter the outcome based on phenomena lying within the client's control. Counseling therefore performs the task you have in mind, of changing the law as it applies to the client's desired outcomes, by way of altering the lesser details. Transaction crafting, as well as litigation, similarly proceed by iterative examination of what the courts will do in fact given the facts established by the contingent behavior of the parties.

  • Which is why Holmes doesn't mean what you take him to mean, and why your purported disagreement turns out to be an agreement after all. But if the rationale of the essay is to disagree with Holmes, there isn't one once the writer has been correctly understood. Either you want to take the insight you share off into some other quarter where it can produce new insight, or you want to find another raison d'etre for a substantially different draft.


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r4 - 08 Jan 2010 - 21:35:00 - IanSullivan
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