Not long after Atlanta attorney Jay Latzak joined the Powell Goldstein law firm in 2007, the economy slid into a full recession, and the real estate market bottomed out. Latzak, a real estate attorney, saw his career come to a screeching halt.
"All of a sudden I went from doing a lot of real estate lending and real estate transactions, sales and acquisitions to nothing. Zero. I mean it went down to absolutely zero," he recalls. "The question is what do you do? What do you do at that point? You’ve got no work on your plate and nothing to do."
Faced with the possibility of being laid off and with no work in sight, Latzak decided to reinvent himself. He quickly began learning foreclosure law and became what he calls a "fore­closure nerd." Latzak says, "I read everything I could. I read every case that came out. I read every old case, and then I taught a continuing legal education class."
The strategy worked for Latzak. Not only did he save his job and career, but more recently, he was named a partner in the firm, now Bryan Cave, which merged with Powell Goldstein in 2009.
"There’s no question in my mind that if I hadn’t reinvented myself and been very creative, I would not be at the firm because so many people got laid off," says Latzak.
It’s that creativity that also helped make him a partner this year.
"They saw me becoming a foreclosure person; they saw me teaching CLE classes. I was able to do more work, of course, because every foreclosure that came into the firm kind of got funneled down to me," he says.
The shift in the economy is just one of the reasons many attorneys, particularly partners, have had to become more creative in the way they practice law in recent years. For some, relying on their inherent creativity is an easier leap than for others.
Douglas Yarn, a law professor at Georgia State University who teaches conflict resolution, says it used to be that an associate could make partner in a large firm by simply working hard and producing billable hours, but now that’s changed. "Generally, the economy made it really difficult for a lot of law firms to sustain the kind of economic model that they had. It forces them to be more creative," he says.
Latzak says he thinks the recession has opened up more possibilities. "I think people have become receptive to someone not being so pigeonholed and not being so one-dimensional."
But others in the legal profession, while agreeing that the economy has forced lawyers to re-examine the way they practice law, see the changes as part of a larger movement.
J. Kim Wright is a solo practitioner and founder of Cutting Edge Law, a website that features blogs, articles and video segments from legal professionals dedicated to a more holistic approach to the practice of law. She has written a book, Lawyers as Peacemakers: Practicing Holistic, Problem-Solving Law, and dedicated her career to exploring the integrative law movement, researching various methods of resolving disputes and issues without acrimony.
"[Lawyers] were so desperate, they felt like they had to do something different," she says about the movement. "So there is sort of the pushing against something and then there are the people who were so creative that they just didn’t fit."
Wright says creative attorneys also bring in more clients. "Who wants to have just any ol’ lawyer?" she says. "You have to distinguish yourself in some way to be a really good rainmaker." Additionally, she says, clients want the lawyer to be a whole person. "The biggest complaint about us is that we are automatons. That we don’t have emotions."
The creative lawyer approaches law differently. "The new lawyer actually needs to be creative," Wright says. "He needs to be able to collaborate and be a problem-solver because that’s the world we’re living in now."
For attorney Glenn Hendrix, managing partner at Arnall Golden Gregory, technology is changing client demands, resulting in a premium for creative thought.
"[Creativity] is more important now than ever because when I was starting law you didn’t have the Internet and everything. Some of the things you got paid to do were to just look things up," he says. "Clients don’t need you to just look things up anymore. It’s the more difficult issues that they call you on."
Creativity vs. innovation
Yarn points out that in today’s economic environment, the words innovative and creative often are used interchangeably, but they aren’t the same.
"I think innovation is a combination of that creativity together with just really good leadership skills," says Yarn. "Frankly, you can be as creative as you want, and if you aren’t courageous and committed, nothing is going to come of it. I think there is a certain kind of courage and commitment that has to be part of the mix to be a successful innovator as a lawyer."
"I think [innovation and creativity] are related." Wright says. "They’re cousins. I think that creative people are often innovative and innovative people are creative."
For Latzak, applying creativity was a matter of necessity. "It’s been said that necessity is the mother of invention," he says. "For me the need was I don’t have any work. And I had to solve that need. The need was I’ve got to find work. How do I find work? Well, let’s do something different because what I’m doing isn’t working."
Responding creatively to some very difficult needs is what the Georgia Justice Project did 26 years ago, says executive director Douglas Ammar. Founded by a corporate lawyer from King & Spalding, the organization defends indigents who are criminally charged and, win or lose, lends support to help rebuild their lives.
"The creative part is that it doesn’t just look at the law," Ammar says. "It really sees law in a creative-door-opening sort of way. From the very beginning I think our work is creative because it sees law in a different way," he says. "I’ve seen lots of people respond (in a creative way) when they feel enough urgency and ownership to something different. But the first folks who do that are considered on the edge."
A flash of brilliance
Many would consider 33-year-old Phoenix attorney Ruth Carter on the edge. Carter realized early on in law school that the traditional path was not for her. During her first year of law school, she participated in her first flash mob, saw the potential for legal issues to arise when groups performed in public, and found an unrepresented niche. She now practices flash mob law. In addition, she practices social media, intellectual property and business law.
As an out-of-the box lawyer, Carter describes how she thinks most perceive the legal field. "When you think about traditional law, you’re thinking about old white guys. At least that’s the stereo­type," she says. "They’ve been doing the same type of law forever, and what they’ve been doing has been working. So maybe for them they haven’t had a need to expand or do something different. Why mess with what’s making them millions? I’m not going to disagree with that," she says.
Carter says it will be interesting to see how the law field will change. "I’m really curious to see what’s going to happen when the people who are in the old white guy positions retire or die and other partners take their slots," she says. "Are they just going to be repeating the same patterns or are they going to be looking for how to be different?"
The partnership track
Carter, like many who want to be more adventurous in their legal practice, is a solo practitioner.
But for lawyers in firms, is there a place for creativity?
Many partners are creative, says Wright, but have to keep it under the radar. "We’ve got this culture of ‘you’ve got to fit in,’" she says. "I think the creativity is in the closet. … This movement (integrative law) has been like that. It’s been like coming out of the closet."
Hendrix doesn’t necessarily agree. He says his law firm doesn’t ask people to hide creativity at all, but says the creativity has to be grounded in pragmatism and legal reality. "You can be too creative in terms of getting our clients in trouble," he says. "You have to be bounded by the law."
Hendrix says ultimately lawyers are problem solvers and taking a "paint-by-numbers" approach can’t solve some problems. "You’ve got to paint your own picture, and creativity is really critical to what we do. It’s got to be creativity with boundaries, mainly legal boundaries," he says.
Eye of the beholder
Creativity may depend on the definition. Some attorneys view creativity as finding a different way to tackle problems. Others see legal creativity as a larger, more overarching way to approach law and practice law.
For many, it’s both. Trial lawyer Scott Holmes, a partner at Brock, Payne & Meece in Durham, N.C., uses his creativity in and out of the courtroom. When not practicing law, the married father of four children dances ballet, plays classical guitar and writes and performs children’s music with a group called Flying Hippo.
Holmes is adamant that creativity plays a role in his job. "In my experience, creativity is essential to doing a good job as an attorney and succeeding in setting yourself apart from other attorneys," he says. "So finding who you are as a person and what your areas of creativity are and finding a way to express that … has helped me stand out as a different kind of attorney."
It’s all about the box
Expressing creativity requires stepping out of the norm and pushing the boundaries.
"Your ability to be creative can be limited by the structure you’re in," says Carter, "because if you’re stuck in a small box, your ability to be creative only goes to maybe those boundaries and maybe a little bit beyond that, versus those of us who are in solo firms or smaller firms. For us the sky is the limit. Maybe we’re considering ideas that other lawyers can’t even get to because their brain stops before then."
But Hendrix thinks limits and boundaries are a good thing that forces creativity. To make his point, he points to Orson Welles, who said "The enemy of art is the absence of limitation."
"If you don’t have limits, then you don’t have to be creative. It’s just sort of all out," Hendrix explains. "You’ll just do what you’ve always done, and there’s no need to think a new way."
Law is a second career for California attorney Linda Alvarez. Prior to becoming a lawyer, she studied mime with Marcel Marceau in Paris, and with her husband owned a theater company. Alvarez worked in law firms before branching out on her own and now practices what she calls "Discovering Agreement," which is an alternative approach to more traditional, adversarial contract agreements.
Alvarez credits her years in the theater and her artistic background for her unique ability to approach things differently. She says while she was accepted when she worked in a law firm, she was considered an oddity as a creative person. "We’d sit down to talk about litigation strategy and our theory of the case, and I would be pointing things out and another lawyer would go ‘I want to think outside the box like Linda.’ I would think to myself, what box? What box is there? Show me the box. I’ll get in the box!"
Holmes says part of a lawyer’s training is trying to figure out what fits into which box and what rules apply. "So it’s a very structured way of trying to resolve conflicts. The way we’re trained to do it really takes a lot of the humanness out of and depersonalizes conflicts in a way that makes it hard to be creative," he says.
One of the main reasons lawyers may hesitate to be creative is the risk involved and the fear of making mistakes.
"We understand the risk of making a mistake in such a way that we will only do what we know has a track record," Alvarez says. "We only look at things that have been proven in the past to have worked."
"Here’s the problem with lawyers," says professor Yarn. "Lawyers are in the business of reducing uncertainty. That’s what people hire us to do. So to be creative in a sense creates uncertainty because you have to challenge assumptions, and we work off of a whole set of assumptions," he says. "Good lawyers push back on assumptions, but the creation of uncertainty is unsettling generally for lawyers."
Holmes backs up that assertion. "There’s always a concern that the nail that speaks up is the one that gets hammered. So there’s a fear to taking the risks," he says.
Holmes should know. His approach in the courtroom sometimes pushes the boundaries of the norm.
He points to his interest in performing arts as the reason behind his method in the courtroom, comparing his style to that of a professional storyteller.
Holmes says he often uses the courtroom to create an imaginary set as if it were a stage. He re-creates the scene for jurors by assigning key locations in the case—such as the kitchen, bathroom or bedroom—to spaces in the courtroom. During his argument or cross-examination, he will stand in the part of the courtroom relevant to what’s being discussed. In his closing arguments, Holmes will sometimes sit in the witness stand and re-enact for the jury different testimony, a tactic he claims is a powerful storytelling technique.
"Whenever I go to the stand, there is a part of my closing argument when everybody really feels uncomfortable because it feels like I’m breaking some kind of rule," he says. "There’s no rule against it. It really makes the prosecutors uncomfortable because they don’t know if they can object or they can’t object."
Some attribute the legal field’s struggle with creativity to the way law is taught.
"You know the way we teach them (law students) is not necessarily conducive to creativity," says Yarn. "So by training, and inclination to some degree, most lawyers don’t consider themselves creative, and they’re not necessarily encouraged to be creative."
But there is a movement to change legal education too, and some change may come over time.
"I think people are more likely to look for something that is the right fit for them versus just accepting where they are today as being the end all, be all," says Carter, the flash mob lawyer.
And in a profession that is about generating solutions, the possibilities for creativity are endless.
Yarn says, "The real excitement and the real creativity comes when you have something really unique, when the law doesn’t have something clear to say about the situation."