By Christina L. Martini and David G. Susler
Christina L. Martini is a practicing attorney, author and columnist. She is a partner with McDermott Will & Emery and focuses her practice on domestic and international trademark, copyright, domain name, internet, advertising and unfair competition law.
Martini’s husband,
David G. Susler, is associate general counsel with National Material L.P., a manufacturing company primarily engaged in steel processing and aluminum extrusion. He has a general practice, providing advice, counseling and training to all business sectors and operation.
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How is a lawyer’s creativity something that makes a difference?
Martini: Since the last recession, there has been a relatively flat demand for legal services. Consequently, law firms are competing for a finite amount of work, and it is now much more about stealing market share than it was before. In this context, to be successful, you cannot just be smart and a good lawyer anymore. You need to be able to meaningfully differentiate yourself from other lawyers. One of the benchmarks that clients use in making purchasing decisions is how effective outside counsel is in helping them achieve the legal and business goals they have. It is important to understand that the best answer is often not just a legal one, and it is never in a vacuum.
Creativity enables you to see more optimal solutions that other lawyers may not see, and which are three-dimensional and take into account myriad business, legal and economic factors. Creativity helps you get clients closer to a multifaceted solution that works well for both the business as well as for legal. It is often a byproduct of subject-matter expertise, deep legal and business experience and a strong ability to think outside the box.
Susler: As lawyers, we regularly deal with complex and challenging situations. Especially in the business world, the “legal answer” is not always the best or most helpful answer. For example, if you are having a dispute with a customer, there may be legal remedies available. However, given the time and cost to get there, which most companies do not have in the ordinary course of business, lawyers can best help their clients resolve what appears to be a legal issue by coming up with creative nonlitigation solutions that provide more immediate, business friendly relief. There are many lawyers who can give you the legal answer but it is your creativity in crafting a unique alternate solution that makes you stand out among the crowd.
How can creativity supplement purely legal analysis?
Susler: Two examples from my own practice come to mind. One was a complex commercial case that went up on appeal. In litigation, the best storyteller typically wins. I retained an outside appellate attorney who is not simply a great lawyer but also an excellent writer. We needed creativity in crafting the complex factual and legal scenario into a compelling story that would win the day with the appellate court, which he successfully accomplished.
The other is internal investigations. These situations often involve issues that ultimately are not legal at all but rather arise out of interpersonal conflicts or misunderstandings. Creativity is necessary to ask the right questions in order to understand the true nature of the dispute, and then craft a solution that, although not technically “legal,” will resolve the immediate problem and help prevent it from reoccurring.
How can lawyers become more creative?
Martini: Lawyers can be more creative by taking a step back and thinking more multidimensionally about issues their clients come to them to solve. They need to ask the right questions to get to the heart of the matter and to understand that getting to the right answer is not a linear exercise. It is generally a combination of legal and business solutions, and a willingness to take risks, which often helps get the client closer to the end result they wish to achieve than they would by just focusing on the right legal answer. In my experience, there is often more than one right answer for any given issue, and what the best answer is for a given client depends on what is important and at risk for them as well as their risk tolerance, timeline for resolution and what its alternatives are in the situation. Lawyers should be familiar with these variables, as well as others that may be particularly relevant to the client, when trying to craft the best solution for any given problem.
Susler: For in-house lawyers, I would say you must know as much about your business, and your business colleagues, as possible. Take the time to get to know your colleagues as people — learn how they think, how they work, their strengths and weaknesses both as employees and as people. Develop your EQ/emotional intelligence. Also, after you have “solved” an issue or completed a project, check back in with your colleagues to find out how your solution ultimately worked out. This helps you build on that experience for future situations when you need to find a creative solution for a different problem.
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