What's this weblog – blog – blawg – all about? It's about creativity – how lawyers have come up with unusual solutions in their practices. And, it's about how lawyers can come up with more. It will also be about general principles of creativity – as used in business, in science, in anything – and how those principles can be and have been applied in the practice of law.
It's about how not to think like a lawyer. We have all been trained to be logical. If we want to go from A to Z, we have to pass through C, D, and the other 22 letters to get to Z. The blawg is about how to do what Edward de Bono describes in his book entitled Lateral Thinking. The Oxford English Dictionary defines de Bono's lateral thinking process as follows:
"[A] way of thinking which seeks the solution to intractable problems through unorthodox methods, or elements which would normally be ignored by logical thinking."
But, this weblog is not about finding unusual solutions and making novel arguments that no judge in his or her right mind would buy. Instead, it's about coming up with easily-understood solutions that, in hindsight, appear obvious, both to you, and, more importantly, to others. As Arthur Koestler said in his Act of Creation, "[T]he more original a discovery, the more obvious it seems afterwards."
I don't know where you went to law school, but many years ago, when I went, we had courses in constitutional law, in torts, in procedure, in administrative law, in . . . , in . . . . But I certainly had no course that put all the courses together and taught that if you have a statute, a rule, a regulation, a code, or whatever is killing your case, here is a list of steps to think about in order to overcome your obstacles. In Con Law, we learned all sorts of cases and principles, but who taught that if you had something like a rule of civil procedure or even a local court rule, you should consider that the rule might be unconstitutional. And, of course, the constitutional principles that were taught would have almost always referred to the federal Constitution. Who ever taught that maybe, just maybe, the statute, the rule, or whatever, that seems to be killing your case might violate a provision of a state constitution. For instance, many state constitutions include something like the following:
"All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality or unreasonable delay, for injury to him in his person, property, reputation, or other rights."
How many of us learned – and if we learned, how many of us have forgotten – that state constitutions are loaded with protections like these for our clients.
Lots of different "out-of-the-box" solutions will be discussed here. You may not have a use for any of them now, but hopefully you will remember them and be able to use them or the principles they represent when you do have a problem. Each item will be another arrow to put in your legal quiver.
Some of the postings will appeal to you (I hope) and make you think. Others won't do either. And, different people will react differently to different postings. Different people will find different examples fascinating and/or useful.
I hope that the examples and other items that you read will give you a series of "Aha" experiences – those "Eureka" moments – when you will say to yourself – or even out loud – "Why didn't I think of that? That's the answer to my problem – and the solution was obvious."
Please send me your own "Aha" experiences that you think may help others. This request applies to judges also – please send examples of how lawyers overcame what seemed at first to be insurmountable problems.
What I'm looking for are real "out-of-the-box" solutions, ones that others will say "I wouldn't have thought of that!" I would appreciate hearing from you about your out-of-the-box solutions and your comments and suggestions.
Enjoy the site. Legal creativity can be fun. And it can be profitable both for your clients and for you.
Posted by ajlevy at May 30, 2003 3:29 PM