Creativity is making something of real value that did not exist before. The law requires creativity when attorneys practice at the highest levels. Cookie-cutter thinking won’t solve the non-cookie-cutter problem from the non-cookie-cutter client. Yet, the demands of modern practice can snuff out that spark; the process of creation involves a lot of stuff that does not fit on a time sheet.
Consider Justice Louis Brandeis, surely one of the most creative lawyers who ever lived. Among the creations for which he is known is the Brandeis Brief, which cited a variety of nonlegal sources to argue for the constitutionality of an Oregon statute limiting women’s working hours.
He once said that he could do 12 months of work in 11 months but not in 12. For that reason, he took the whole month of August off. Brandeis probably did not have a name for this space other than "vacation," but something important was going on during that time. In space like that, in the margins of life, creativity germinates.
Incubation is one of the stages for creativity identified in Mihaly Csikszentmihalyi’s book,"Creativity: Flow and the Psychology of Discovery and Invention." The author identifies one of the stages for creativity as "incubation." According to Csikszentmihalyi, unforced incubation is one of the keys to creativity.
Like other creative people, lawyers cannot produce moments of true creative insight by force in a Protestant work ethic kind of way. Surely, work is involved in creativity. But the process itself is recursive and intuitive.
The creative person prepares or becomes immersed in a topic or issue, incubates, receives new insight, evaluates and elaborates on the new insight. But these are not steps or ingredients. Periods of percolation constantly interrupt the process, and small epiphanies of insight punctuate it.
Consider how many times the game-changing "aha" moments have happened in the shower, while shaving or while out on a morning run. Insight like that surely required previous training, immersion in the problem, and hard work and research. But the optimal solution only appeared after the unconscious or the intuition had a chance to chew on the problem for a while.
Incubation is especially essential for lawyers who are introverts. Susan Cain, a former Wall Street lawyer herself, believes that more than half of her colleagues were introverts. She studied the subject for seven years for her amazing book, "Quiet: The Power of Introverts in a World That Can’t Stop Talking."
According to Cain, introversion or extroversion is an innate part of who people are, as much as gender is. Each person, to quote Lady Gaga, was "born this way." Preserving recovery zones of quiet time and space is essential for introverts to create and thrive in an American culture that affirms an extroverted ideal.
Yet the modern practice of law constantly narrows or eliminates life’s margins, which attorneys need in order to create. Modern practice in the extrovert world fetishizes meetings, conference calls and endless discussions of a problem. In today’s firm, especially the large firm, rewards hinge on time sheets, collections, efficiency and busyness with business. Attorneys must fill every minute with something of immediately identifiable worth. The products of incubation might be rewarded, but incubation probably is not.
So how does one protect incubation space in modern life? This is probably an individual matter, but here are some suggestions:
• Set aside space. Preserve time during the day, however lengthy or brief, for the brain to re-boot and empty itself of clutter.
• Understand natural rhythms. Morning people can take advantage of the quiet, early hours at the office, perhaps making a free-form, how-to list. Night owls can carve out some time after the office empties at the end of the evening.
• Screen the screens. Break the iPhone habit. Turn off the TV. Don’t stay constantly connected to the Internet. Avoid filling the mind with clutter from a screen while walking about or riding the elevator. Watching a screen sucks away incubation time. The brain’s grey cells need some space.
• Exercise. There is no substitute, really. Repetitive, meditative activity like running, swimming, yoga or cycling is a fantastic re-start for neural computers. A day too scheduled for a full-on workout still permits a 10-minute walk outside during the afternoon doldrums.
• Vacate. Carve out time during the year to get away from the desk. Like Brandeis, perform a full 12 months of work in 11.
• Rediscover life as a real person. Pursue creativity outside the legal realm, perhaps in some activity enjoyed in the past. The time spent not consciously thinking about law is when the unconscious actually accomplishes its work.
• Get real. Probably most important, attorneys must master their schedules and learn to say no. This means pencilling in the time and the inactivity incubation requires. A brief that is due in 48 hours cannot ripen. An attorney writing or supervising 100 briefs is not permitting any of them to simmer.
All this incubation is not easy, especially for a Type-A, goal-oriented, results-driven person like me. It’s difficult to trust that the intuitive solution will appear and that time spent pondering will be more fruitful than jumping straight into writing. Sometimes, it takes a leap of faith to believe that incubation time others consider wasted will be worthwhile in hindsight.
Case in point: Steve Jobs certainly ranks as one of the most effective and creative people who ever lived. But if I had been his parent, I would have despaired of his prospects. I can hear my lecture now. "Steve, you have so much talent. You’re wasting your life: dropping out of college and then hanging around to take calligraphy and typography classes? Straighten up, son." Only in hindsight, only after the Mac brought the world personal computing with beautiful fonts and great typography, do the creative products of incubation reveal themselves.
Lawyers who aspire to unleash their creative potential need carve out time to allow that to happen. That’s unless they would prefer a practice of monochromatic dots on a black screen.