The Complete Lawyer

How does creativity relate to professional achievement and personal fulfillment? How can creativity help us move toward the elusive goal of becoming “the complete lawyer?” These are the questions this article and others in this series will answer. Creativity is not only a skill that can be developed, but also a natural gift that can be cultivated and coaxed into fruition.

The disciplined use of creativity in our practice will make us more effective lawyers. But the importance of creativity goes beyond improved performance. By learning creative techniques, like lateral thinking, we can become healthier, happier, and wiser.

Vertical Thinking Limits Your Options

Lateral thinking is the brainchild of Dr. Edward de Bono, an authority on creative thinking. According to Dr. de Bono, “’Lateral thinking’ is the creativity concerned with changing ideas, perceptions, and concepts. Instead of working harder with the same ideas, perceptions and concepts, we seek to change them.”¹

He coined the term to distinguish it from the “vertical thinking,” which is concerned with arriving at the correct conclusion through a sequential, logical process of rejecting incorrect choices. To conceptualize vertical thinking, imagine soldiers crossing a minefield: they advance only by rejecting some steps as incorrect and taking a step only after they have concluded that it is “not-incorrect,” that is, that they won’t be blown up. To conceptualize lateral thinking, picture kids running onto a playground: full of curiosity they just want to play.

Dr. de Bono describes vertical thinking as a “self-maximizing system with memory” and argues that at any given step in the sequential process the “arrangement of information must always be less than the best possible arrangement.” ²

This is because at every step some information is not yet available. However, if our thinking is to progress, we must accept some choice as “not incorrect” based on the information at hand. As a result, we tend to make key choices prematurely and then lock into them. Like soldiers crossing the minefield, we get halfway through the problem only to find our progress blocked on all sides.
The key to getting unstuck is to see things differently. Lateral thinking is a generative process of using choices not to advance thinking, but to change habitual perspectives; it re-opens our awareness and allows us to escape the straightjacket of haphazard mental habits; it triggers a “repatterning of information.”

Legal thinking is steeped in vertical thinking. For example, if we discuss a tort case, the elements of that cause of action immediately become part of our conversation. You might ask, “Where’s the duty?” as you try to think of precedent that would allow that element to be satisfied. You most likely will proceed sequentially and negatively, rejecting material that does not support the allegation that the defendant had a duty to the plaintiff. This is a good thing, of course, because nobody enjoys being non-suited. But when traditional legal thinking arrives at a dead end, it is important to ensure that our expertise does not lead us to blindly work the same concepts harder. Dr de Bono compares this to digging a dry well deeper when the smart thing to do is drill elsewhere.

One limiting mental habit we have is the tendency to conflate “real facts” with opinions, conclusions and judgments. For example, suppose you conclude that opposing counsel is engaging in dilatory tactics. The behavior may satisfy fully your criteria for that conclusion, but a conclusion is an opinion and not a real fact. Unless you distinguish between the fact and opinion, your opinion will blind you to the important, real facts.