I just finished Michael Melcher’s The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction.  I’m not sure what I expected from this little book (at 175 pages, it is remarkably spare relative even to most other paperbacks).  At a list price of nearly $39.95, however, I expected something substantial.

I expected, at bottom, to have Melcher explain how creativity is successfully applied to the practice of law.  I did not get that.

Melcher’s little book is not, it seems, about the application of creativity to the law.  Instead, it provides advice for those who are dissatisfied with their current practice of law.  It provides some solid exercises for those who are considering a career change to better align their values with their careers.

I don’t want to be unfair to Melcher:  his book is a nice guide to possible career change, or at least to supplementing the practice of law with other disciplines. Yet Melcher’s is a book for the dissatisfied lawyer.  It is not the satisfied lawyer who wants to apply more creativity – or apply it better – to her craft.  There are many dissatisfied lawyers, as I’ve explained elsewhere.  Thus, there is ample reason for Melcher’s book.  Indeed, he emphasizes many of what I would term life’s best practices – lifelong learning, connection, and various mind tools like value clarification.  But the book is not substantially about being a more creative lawyer.

What then, Is Creative Lawyering?

I compare Melcher’s work to the teaching of my Property Law professor, Duncan Kennedy.  Professor Kennedy taught me (and most of my classmates) relatively little about property, but he provided an excellent primer on applied creativity.  The law, he explained, was full of gaps, conflicts, and ambiguities. Creative lawyers identify and take advantage of those quirks and uncertainties.

Furthermore, precedents, Kennedy preached, are almost always distinguishable. Something in the factual setting is bound to provide an argument (maybe even a good one) that a case that seems superficially very similar is in fact very different, and does not dictate a similar outcome in your case.

Professor Kennedy spent almost a quarter of my first year of law school providing various analytical filters that could be applied to everyday legal questions to arrive at new – creatively new – results.

Doubtless, Professor Kennedy overemphasized the unsettled nature of the law for dramatic, pedagogical, and often humorous effect.  Many times cases are sufficiently similar that the result in one case should control the result in the next.  Often, a statute or regulation speaks fairly directly to a legal situation, leaving little room for creative lawyering.

Yet the practice of law, at its best, is highly creative.  In twenty years of practice, I can count on one hand the times when I have felt that I have no solid arguments for my client’s position.  Those arguments are not always clear at the beginning of a case; indeed, a matter may look rather bleak at first.  That’s when creativity begins:  the hard, but interesting, creative work of discerning the core facts that are meaningful to your client’s position, the legal context in which those facts will be interpreted, and the best argument for your client’s interpretation of those facts that will eventually form the evidence at trial.  And yes, some 20 years after taking a property class with Professor Kennedy, I still pull out my property notes to look to gain insights from his analytical framework.

Nor was Duncan Kennedy alone in teaching creative lawyering.  Martha Minow spent most of our first-year civil procedure class arguing about the competing views of justice and fairness.  Kathleen Sullivan taught Local Government Law through the eyes of two friends, President Madison (an advocate of centralization) and President Jefferson (an advocate of decentralized government).  Others were equally gifted in bringing rigorous creative efforts to their subjects.

These professors and others taught and applied creative lawyering.  The best of my colleagues and peers do the same thing.  There is substantial room for creativity in the law.

And Back to Melcher

Thus, in the end, I’m disappointed.  I suppose expected from Melcher an exploration of how creativity is applied in the practice of law in order, as his subtitle says, to achieve “authentic professional satisfaction.”  Perhaps he would have performed research into the roots of creativity, so as to describe how people tap into its sometimes obscure wellsprings.  Maybe he might have taken various theories of creativity and showed how to apply them to make one’s legal work richer, more inventive, more innovative, and hence more interesting and rewarding.  Perhaps he would have explained how various practical guidelines for applied creativity and innovation – those of Edward de Bono, for instance, or Roger von Oech, or Julia Cameron [note- Melcher does mention Cameron's signature work, The Artist's Way] or numerous others – could be fruitfully used to achieve meaningful and satisfying results or develop new legal frameworks to resolve society’s challenges.

Unfortunately, this was not so.  That work is left to someone else. Maybe one of us?

P.S. By the way, because I got my copy of Melcher’s book through the wonders of PaperbackSwap.com, it was essentially free to me.  If you haven’t explored PaperbackSwap, I suggest you do it.  Especially if you are buried in books, as I sometimes have been.