The Complete Lawyer

Lateral Thinking Generates Helpful Alternatives

In my experience, frustration often has its roots in mechanical vertical thinking. Let’s say that I am frustrated by an opponent’s dilatory tactics and want to do something about it. I resort to vertical thinking according to which I realize that I could:

• Complain to the court
• Respond in kind
• Get used to it

None of these seems particularly useful so I put the problem aside, complain about how lawyers used to be more professional, and head home to catch Monday Night Football.

The next morning I am up early and decide to grab a quick breakfast at the Waffle House. The waitress pours me a fresh cup and tosses several capsules of liquid creamer onto the tabletop. I look at the little containers for a moment and a lateral thinking question pops into mind: what can these teach me about my problem with my dilatory adversary?

I decide to come up with fifteen ideas, based on these coffee creamers that might relate to my problem. The quality of the ideas does not matter: great, good, dumb, silly, mad, profane—it’s a “come as you are” idea party and all are welcome.

Here are the first four ideas that occur to me about the creamers, and how these thoughts relate to my case:

1. They are self-contained packets with little real content—Pleadings don’t contain much.

2. They are all about the fake flavor—Arguments have more bark than bite.

3. They have to be opened to be dumped into coffee being consumed—Benign neglect might keep arguments encapsulated.

4. The packets promise more than they deliver—There’s not much to the opponent’s case at moment.

My flow of ideas stops there, so I open up a creamer, dump the liquid into my coffee, and put the empty container to the side. I sip my coffee. Perhaps it is the physicality of that mundane task or the taste of the coffee, but six more ideas suddenly occur to me:

1. Once used, the creamers are discarded and have no practical value.

2. Individual units can be arranged into different patterns, like a question mark. You see the individual packets but respond to the pattern.

3. They can be stacked but the tower is not very stable—so far, my opponent hasn’t offered a strong line of argument.

4. Many small, prepackaged capsules can be quickly delivered—I can use the same approach responding to my opponent, relying on many small gestures rather than one large gesture.

5. They can be thrown at someone one at a time, which is more irritating than damaging—this is what it feels like my adversary is doing to me.

6. They are all the same, predictable—I can use the predictability in future pleadings.

Though I’ve already generated ten new ways of looking at the problem, I keep going until I reach fifteen. This feels like looking for my car keys after I have found them, but I remind myself that my purpose is to generate a set number of ideas, not to solve a problem.

Break Through The Trance And Change The Channel

Next, I take stock. I realize that I have been reacting to a pattern in behavior rather than the behavior itself. So far, nothing opposing counsel has done or filed actually has hurt my case; in fact, the main threat to my case is my own distraction, which results from how I have perceived his behavior. That is, I feel as if he has been tossing coffee creamers at me from across the room. But it might be worth the irritation to continue to observe his patterns. For example, in the future I might be able to predict his behavior to my advantage or characterize his advocacy in ways that undermine his credibility. From this perspective, my adversary’s behavior seems perfectly suited to my interests. As a result, I now respond to it with curiosity.

Ultimately, I decide to treat the problem with curiosity and benign neglect. This might sound like option #3 from the “vertical thinking” list, but it is not. The “get-used-to-it” option describes resignation to mistreatment, an admission that in the face of someone else’s behavior I was neither resourceful nor resilient enough to respond in the best interests of my client. But by playing with a handful of coffee creamers, I broke that trance and opened myself up to consider more productive and enjoyable approaches to what was formerly a vexing problem. In just a few minutes, lateral thinking helped me “change the channel” and to become healthier, wiser and happier in my practice.

If you want to learn more about lateral thinking and other creative thinking techniques, start with Dr. de Bono’s book, Lateral Thinking. I also recommend his book of exercises, The Creativity Workout. Remember, how we think can profoundly affect how we experience what we are thinking about. Lateral thinking can take us from stuck to strategic in the blink of an eye.

RESOURCES

de Bono, Edward, Lateral Thinking: Creativity Step by Step, New York, Harper Perennial, 1990.

Creativity Workout: 62 Exercises to Unlock Your Most Creative Ideas, Berkeley, CA, Ulysses Press, 2008.