December 5, 2011

Mix Creativity With Dogged Persistence When Preparing for Trial: A Lesson from the ABA Journal’s Blawg 100

 By Dr. Ken Broda-Bahm:

Sparks and grinder
The American Bar Association Journal just released its 2011 Blawg 100 list of the best legal blogs in the country, and I'm very proud to say that Litigation Postscript (soon to be renamed "Persuasive Litigator") is on that list!  If you like our content, you can follow the link, select "Trial Practice" and vote to place us higher in that category. 

But beyond that little self-promotional moment, the ABA's list, as well as the past year of coming up with fresh content to keep to my schedule, got me thinking about the nature of blogging and the nature of trial preparation.  Blogging, at least when you are doing it regularly, requires a combination of two things that are sometimes seen as opposites:  a bright creative spark and a dogged wearying persistence over time.  Preparing for trial requires the same.  You need the dogged persistence for a relentless schedule keeping up with motions, making filings on time, and continually touching base with your witnesses and clients.  But, particularly as you get closer to your trial date, you need the true creative spark in order to imaginatively adapt to your decision makers, navigate your case weaknesses, and develop an effective theme and case message.  Recent research and commentary has a surprising amount to say about how the two — the creative and the reliable – are balanced, and this post will look at a slice of that as it relates to the creative and reliable work of an active litigator.

Productive Flow in Trial Preparation

Margarita Tartakovsky writes, “Creativity is not a gift bestowed to a select few before birth.  Everyone is creative.  It’s just that for some of us, that creative spark may be buried under piles of bills, boring tasks, routines and responsibilities.”  A little like blogging, litigation can sometimes focus on those boring tasks, routines, and responsibilities, and I’m not talking about the dynamic moments in front of a jury, but of the long lead-up that comes before, and more often instead of, trial. 

In theory at least, the trait that connects creativity with productivity and takes you from routine to sublime, is this elusive concept of "flow," or the mental state of being completely present and fully immersed in a task (as discussed in a recent piece in Psychology Today).  It is like when you look up and realize that you just completed your entire cross-claims briefing, and you've done it with complete focus and little in the way of time, stress, or doubt.  In a soon to be published study on flow (Ullén et al., 2012), a number of Swedish researchers measured how frequently study participants would experience flow in their personal and work lives, and found a number of relationships between flow-proneness and personality traits, specifically: 

  • There is only a weak association between flow and intelligence.
  • Those who are conscientious, dutiful, and persevering tended to report higher levels of flow.
  • Neurotic individuals (those overanxious or focused on negative emotions) tended to report lower levels of flow.

In other words, the message is:  "however smart you are, keep your nose to the grindstone and stay positive."  For the trial lawyer trying to be both diligent and brilliant prior to trial, however, that can be hard advice to follow.  Unfortunately flow is not a switch you can turn on and off, and does not yet come in pharmaceutical form.  Looking at a number of recent commentaries, though, I can point to a few pieces of good advice for balancing your bright spark with your persistence. 

Strike the Balance

1.  Don't Over-Rely on Imagination.  Waiting for a “muse,” or for inspiration, can be deadly.  In the early history of this blog, for example, we wrote posts when we had a great idea.  Weeks often went by without a great idea, because there was no schedule forcing our minds into that creative mode.  When there is no urgency, there is no great idea.  Moving to a twice-weekly schedule, in my view at least, improved both the quantity and the quality of the posts.  I think the same goes for the creative dimensions of trial work.  If your goal is to come up with a great theme, then set a date for it and meet it.  Coming up with a “good but not great” theme earlier can stimulate the thinking that may make it great later.  And in any case, it is better than having no theme as you walk up the courthouse steps.

 2.  Immerse Yourself and the Creativity Will Follow.  As Chris Guillebeau wrote recently, for most of those who work in creative fields, ideas are not the problem, execution is.  We spend too much time thinking about what we'll do in the future.  Guillebeau recommends that you, "Make your art your obsession. Fall in love with it. Experience withdrawal symptoms when you don’t give it your attention.”  The best lawyers I've worked with have exactly that relationship to their cases.  They not only work long hours, but they go to bed thinking about the case and they wake up with an idea.  Each idea they come up with may be no better than the ideas of an attorney who is only reluctantly engaged in the case, but the point is that they come up with more ideas because they are immersed.  When you get used to this obsessive approach, your brain starts to give a different kind of attention to a problem, like a computer running a program in background mode.

 3.  Don't Find Creativity in Overwork Alone.  You can be obsessed or immersed without driving yourself crazy, and the truly overworked individual can be far less productive and far less creative.  In a video at the 99% blog, “The Myths of the Overworked Creative,” Tony Schwartz takes aim at an assumption that lawyers going to trial can be particularly susceptible to:  the idea that longer hours lead to increased productivity.  Debunking that myth, he instead focuses on the “pulse and pause” pattern that characterizes the work of most in creative fields.  We dive in, then rest, then dive in again.  The attorney close to trial can feel like she has little choice:  "If I don't overwork, then the motion isn't answered and I don't have an opening."  That can sometimes be true, but where possible, you will have higher quality work by taking a "little at a time" approach to tasks.  Instead of writing the entire opening, for example, two days prior to trial, write a point or two on the opening every day during the two months prior to trial.  On some days, you'll be less creative and productive, and on some days you'll be more.  But over time, you'll be forcing your brain into its long-term thinking gear, and your opening will be better for it. 

Lawyers will sometimes resist their artistic side.  After all, you went to law school, not art school.  But we are mistaken if we see creative work as just the province of imagination.  As Oscar Wilde wrote, “The imagination imitates.  It is the critical spirit that creates.”  That critical spirit – the ability to question, to identify flaws, to generate alternatives – is something that litigators generally have in abundance.


Related Posts:

____________________ Fredrik Ullén, Örjan de Manzano, Rita Almeida, Patrik K.E. Magnusson, Nancy L. Pedersen, Jeanne Nakamura, Mihály Csíkszentmihályi, Guy Madison (2012). Proneness for psychological flow in everyday life: Associations with personality and intelligence Personality and Individual Differences, 52 (2), 167-172 : 10.1016/j.paid.2011.10.003

Photo Credit:  Public Domain Photos, Flickr Creative Commons

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