Don’t Let Law School Crush Your Creativity

Episode Notes

Transcript

Todd Berger: We’ve all heard the adage law school teaches you to think like a lawyer. One of the things that law students struggle with throughout their time in law school as they learn to be lawyers is, how do I become a lawyer without losing those parts of myself that were so important to me beforehand? Another thing that happens in law school is as you learn to think like a lawyer and write like a lawyer, students often think that they’re losing the creative aspects of their own mind and sense of exploration that they had before they even got to law school.

Today you’re going to hear about how you can be a law student. You can be a lawyer, and you can still be true to who you were before you got here. How you can be your own authentic self. And you’re also going to hear on today’s podcast about how you can exercise your creative muscles to become an even better lawyer and do incredible things in the practice of law. Welcome to the ABA Law Student Podcast.

Todd Berger: Hello, everyone. My name is Todd Berger. I’m a Professor of Law at Syracuse Law School and the Director of Advocacy Programs. And I am the faculty host of the ABA Law Student Podcast. For this academic year, we have two fantastic hosts who are going to be joining us. Leah Haberman and Chay Rodriguez. So excited for what Leah and Chay are going to bring to this podcast throughout the year. Let’s hear from both of them.

Todd Berger: Leah, why don’t you tell us a little bit about yourself.

Leah Haberman: Thank you, Todd. I am a 3L at Columbia Law School. After law school, I’m hoping to do direct service, public interest work, but what form that will take is kind of up to the fellowship universe right now. So we’ll be keeping folks updated on that. And I’m just really excited to have conversations that are not kind of the bread and butter of the law school world, but the conversations I kind of wish we were having.

Todd Berger: Super excited to hear what you have in store. I know we have a great first episode coming up and I’m sure there’s going to be a lot of great episodes throughout the season. So thank you for joining us, Leah. Chay.

Chay Rodriguez: Hi, everyone. I’m Chay Rodriguez. I am a part time evening student. A 3L at Atlanta’s, John Marshall and I am so excited to kind of dissect the different things that are going on in our legal world now with not only the people that we bring onto speak to and interview, but also my castmates. I’m really excited to hear our first episode, which Leah actually took the reins. I’m so excited to hear what she brought us and really get started and take advantage of this opportunity with you all.

Todd Berger: Super excited to hear what you have in store for us this year, Chay. Let’s turn our attentions to today’s story. Hi, Leah, so what are we going to talk about today and who are we going to hear from?

Leah Haberman: I had the amazing opportunity to talk with Professor Michelle Falkoff, who teaches at Northwestern. She runs what is kind of their equivalent of the legal writing program, and I was really excited to talk to her. Not just because she’s another Columbia Law grad, but she has this really interesting background where she has been a lawyer and now writes amazing young-adult fiction books. She worked at an IP Litigation firm for a while and then went back to get her MFA and now as a professor, intermingles what she learned in creative writing processes with what we need to be as legal writers.

Todd Berger: That sounds really interesting. What made you want to explore this particular topic?

Leah Haberman: I think I came into law school feeling like a really good writer. It was part of how I conceived of myself. I had done creative writing for fun and then also been a writer on political campaigns, writing op-eds, speeches and the like. And so I was like, I might not be a natural at torts, but at least I’m a good writer. And then when I got to 1L legal writing, and I was writing Memos and (00:04:06) and (00:04:08), it was a disaster. I was like, this is not to me writing. So I was like, but I’m a writer, and I’m not good at this. What is happening? And so I remember feeling so disoriented, and I wanted to talk with someone who maybe could straighten things out, even though I’m a 3L and should hopefully know that by now.

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Michelle Falkoff: So let me start by saying that I had exactly the same experience you did with writing in law school where I was an English major. I had spent my entire life writing both analytically and creatively, and I felt like it was a skill that I had. It was something that I felt pretty confident about, even though that wasn’t always true and I had to work at it over the years. But I came to law school and I found that all of the things that I understood made for good writing did not immediately translate into making me a good legal writer and I found that really frustrating and disheartening in a lot of ways.

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And I think that’s a pretty common experience for students with writing backgrounds who come to law school. So it’s something that I’ve tried to incorporate into my teaching, and it’s kind of something that I talk to the students about in a very particular way. So when I meet my students, I like to get a sense of their background, both as writers just and as people, you know, what did they study, what are they into, and one of the things that I’ve learned overtime is that the students with a lot of writing experience are very accustomed to writing for a particular audience that is not lawyers. And so what their expectation is, is that all of these skills will immediately come to bear on their legal writing. And that’s not accurate immediately. It becomes accurate later. So when I run into students who are writers, I try to very gently let them know that the skill that we’re teaching them is technically writing, right? But it’s not writing in the way that they think of writing, and they need to think about it as a different skill set. And the skills that they have already will eventually be useful, but not immediately.

And I would say the flip is really interestingly true for my engineers and my scientists. A lot of the students who do very rigorous analytical work that does not involve a lot of writing, they come to school very anxious. So they’re sort of the opposite of the writers who come in confident and then we’re like, actually we’re doing something else. They come in very fearful. They’re like, this is not a thing I know how to do, and I’m like, “Actually you do,” because what I’m going to ask you to do is closer to writing a geometric proof than it is writing a poem, right? Or even writing a history paper, that the analysis matters. But what really matters at the outset is being able to structure your writing in a particular way so that you can reach the various audiences you are trying to reach and essentially teach them how to think about these issues the way that you do. So legal writing documents of the type that we write in the first year, which are really mostly about predicting how legal issues will turn out or advocating for legal issues to turn out a particular way. They do require, initially, a really rigorous structure in order to understand how to get that content across and to figure out what it means to be creative within that framework.

Leah Haberman: And I think it does feel almost like that engineering, like mechanicalness, as you kind of construct a memo or a brief, which are the two kind of pieces I did in my legal writing course. And I’m curious, though, you kind of talk about your intentions as you construct your legal writing classes, but how did those intentions change? I know you have a JD and an MFA, you know, when you talk with your colleagues who maybe just have those JDs, is there something where you’re like, actually there’s a way for them to still do this legal writing. They’re not writing short stories. They’re not writing poems, as you said, but to allow kind of that muscle of creativity and maybe if someone has a little bit of flourish and pizzazz to actually make them better legal writers rather than saying that doesn’t belong in legal writing.

Michelle Falkoff: I tend to use less of the this doesn’t belong here, and more, I talk about two things as the most important to me, and one is that this is really audience centered writing, which is to say, all writing to a certain degree is audience centered writing, but we are writing for a number of particular audiences. We’re writing for primarily an audience of lawyers, right? Law trained readers; we often call them. But secondarily, we are actually writing for clients and people who might not have the level of expertise that we do. So when we’re writing for such a broad-based audience, we need to be able to reach a lot of different people with a lot of different levels of expertise. And to me, that usually requires writing that is incredibly clean and straightforward. And the thing about flourish is that even though it can be beautiful, it often interferes with clarity in an environment where people expect a certain structure, right? And so when I talk about creativity as a legal writer in this first year and in the early years of practice, I usually talk about the ways that we present material and the ways that we conceptualize arguments. And there’s some room for elegance in language, but I would say elegance over flourish, right? Like clarity is really the key. But also the other thing that I like to emphasize is intentionality, right? That if we think about our writing as being job focus, right? Our writing is meant to do a job. We have the goal of the writing serving a very particular purpose. So the writing has to serve a job, which means if we write a brief, the brief has to do a job of potentially winning a case for us.

It means that everything about the structure of the brief has to serve that job. Every paragraph and argument have to serve that job, every sentence, every word. So I want my students to feel empowered by their writing. I want them to feel like they are making conscious choices at every level of their writing so that they can make their work beautiful.

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And I would say there are a lot of different places to show creativity and skill at the sentence level, even within the legal writing sphere, but some of them, it really depends on what the job of the document is.

Leah Haberman: I think that has been maybe the biggest shift in my own understanding, is like sometimes someone would say concise, I would hear boring, and if someone said clarity, I would hear dry, and figuring out that there’s actually these middle grounds between the two. It’s not these bifurcated notions and it’s finding the beautiful one word description rather than a beautiful seven-word description, because as you’re saying, you know, a lot of these are court documents that we are working on as lawyers, and they have to do their job, and you don’t want your client’s story to be lost in some larger analogy of biblical representation.

Michelle Falkoff: I totally understand and respect where concise goes to boring and clarity can be dry, but I tend to think of it more like diamonds, right? Like clarity in a diamond is beautiful, concision in a piece of jewelry where the isolated beautiful thing is centered is elegant and lovely. The issue that we talk about a lot with students and that we really struggle with as legal writing professors is what are we trying to get our students to model, right? Where do we want them to learn what it means to be a good legal writer? Because certainly we can tell them all sorts of things in class. We can recommend simplicity, we can recommend elegance and concision and all of those things, but they are reading case law in their classes, and a lot of that case law, I say lovingly, not as well written as I would like, right? Because there are a lot of judges and not all judges, but there are a lot of judges who really perceive themselves to be writing either for lawyers or for other judges. And they have what I call, when my students do it sometimes, the expert problem, which is where they either use a lot of jargon or language that the layperson can’t understand or they skip steps in their analysis because it seems obvious to them and they think that lawyers would find things obvious to them.

And to be a truly sort of clear and thoughtful legal writer to me is to be an educator, is to be a teacher for the piece of writing that you’re working on. So you are trying to use your writing to teach your audience how to think about the issues the way that you do, and judges who do this area real gift to the profession, and I think we all have had the opportunity of reading judges who are really beautiful legal writers regardless of whether we agree with their perspective, who are able to bring their own voice and who are able to bring a certain thoughtfulness and broadmindedness to the question of audience. And I’m thinking in particular, like on the Supreme Court, about Kagan, about Scalia, about Roberts, writers who are just incredibly clear and disciplined about getting across what they want to say, but have very much their own voice and way of getting that material to the audience. And they view, I think, the audience more broadly than just other lawyers and judges. They’re speaking to law students, and often they’re speaking to laypeople.

A great example of this is Varnum v. Brien, which is the Iowa Supreme Court case that legalized gay marriage in the state of Iowa. It’s an amazing opinion, but the tone of it is very different than what you usually see coming out of the Iowa Supreme Court to the point where I would say it’s almost informal. And it struck me reading it that it was very much an opinion written for non-lawyers to make it clear to a very broad audience why this issue is important and why the court was ruling on it the way that it did. I also think that a number of opinions written during the Trump administration share that quality, because everything was happening on such a public stage that there was an expectation, not just that other judges would read your opinion or that lawyers would read the opinion, but that your opinion would be printed in The New York Times and that anybody would be reading it. And some judges were really thoughtful about how they chose to express themselves and chose to articulate what they saw as a means of reining in some of the excesses of the administration.

Leah Haberman: I’m curious, you know, I think we’ve been kind of getting at this about bringing your creativity to make you a better lawyer. So I guess kind of, if you were to say — not to pick on the engineering student again, but an engineering student in first year legal writing, and they’re sitting next to the person who’s bemoaning that, which was me that their creativity is being zapped from them, they’re like, well, why does creativity matter in the legal profession if we can get these memos done and if we’re just trying to be these effective practitioners so we’re not billing our clients more. What is the value, do you think, in being a creative legal professional?

Michelle Falkoff: So I think for the engineers, just to use that example, right, they start out great because it’s all very mathy. Like I said, good memos sort of read like geometric proofs. We’re just trying out a theorem, and we’re kind of proven out where it might land, and we’re speculating from there. But as we move into second semester and we talk about persuasive writing, right? That’s where the creative self tends to come back into play in various forms.

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So even though there are still structural underpinnings to the types of things that we’re writing, and there are certain expectations that readers will have about how we’ll present information and what we’re going to see, we really have to be able to think very broadly about the best way to make a case for our client. And the example that I would give, just at a very technical level is when you are a practicing lawyer and someone else writes a brief and you are opposing that brief, the easy response is to answer every point that the opposing party made. And you can write a very technically proficient brief that way, and you can address every issue that the other side has decided is important, but what you have done is you have given up control of your case entirely to someone else who wants the opposite of what you want.

So a creative lawyer in that space is going to look at the arguments that the other side is making and is going to come up with their own entirely different approach to explaining what the case is about. So one of the cases that I love to teach my students and I’m not going to remember the names accurately, so I’m just going to describe it, is a litigation from a number of years ago that went all the way from the lower courts in California to the Supreme Court and it involved video games, and it was when Schwarzenegger was the governor of California, and the litigation involved parents who wanted ratings to identify how violent a particular video game was and it was going to affect sales and how games were developed. If you read the government briefs, you will read the story of the damage that violence does to children and how difficult it can be for children to kind of process that kind of violence without some warning, and how hard it is for parents to monitor their children’s behavior, and it’s going to be this very kind of violence focused technical argument about protecting the children, right? The narrative, the story there is about protecting the children.

When the video game developers responded, they wrote about art, and they wrote about storytelling and narrative, and they talked about the ways that video games were developing as kind of the newest and most influential art form among young people, and that to kind of stifle their ability to tell stories as they see fit would basically undermine a growing and increasingly important art form. You would think that these briefs were not for the same case, right? They were in conversation with the same legal issues, but they were telling very very different stories, and they were both creative and useful and thoughtful stories designed to help their clients get what they wanted. And if you’re someone who’s going to read the government brief and just write back that violence doesn’t hurt kids that bad, you were going to lose that case.

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Todd Berger: So, Leah, question for you as a law student, if you were working for a partner or your supervisor or something like that, and you got the brief from the other side, would you have thought to do the kind of thing that the professor described in terms of not going point for point, but just doing something different to attack the other side’s arguments?

Leah Haberman: I think my gut reaction would be like when you’re reading things, especially if doing defense work about your client that you don’t think are true. For example, I worked on wrongful conviction cases over the summer and want to be like, “You are wrong here, you are wrong here, you are wrong here.” And it’s like almost the indignation on your client’s behalf where you’re wanting to counter every single part of it.  So I think gut reaction, I would not have been, like and let me reframe the entire story here.

Todd Berger: Yeah, and would you hear how they reframe the whole story, right? I’m sure they didn’t entirely ignore what the other side said, but obviously the gist of what they did was tell their own narrative. What does that say to you about creative lawyering?

Leah Haberman: I think it’s a very empowering thing, and I felt really lucky. And the day after recording this interview in my family defense clinic, we were doing theory of the casework, and so we were given a fact pattern and having to tell the court what it was about. And I think before this conversation, I would have been like, “Oh, I guess I have to resuscitate the case law that’s relevant here. But after kind of the conversation, I was like, no, I’m not even going to take the government’s points, and I’m going to talk about the kind of parent and the kind of person I believe my client is. And it was, I think, more creative than I would have allowed myself to be before and a lot stronger for my client.

Todd Berger: Score one for creative lawyering. We’ll be right back after the break.

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Todd Berger: Leah, your conversation with Professor Falkoff continued. Can you tell us where we’re going?

Leah Haberman: Yeah, we kind of took it in a bit of a different direction. We started talking about being kind of your full person and allowing your full personhood to exist in law school, but that might not necessarily happen in the classroom. And I think I’m someone who’s always been like, be your full person that means go enjoy the Broadway shows, which is an example the professor gave. But we also ended up talking about being your full intellectual person, and that’s when the creativity starts putting itself back into place.

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Michelle Falkoff: I find that the students who struggle the most with the particular form of legal writing and how it does need to be kind of in a particular box, at least at the outset, they usually need an outlet, they need a place to be creative. And some of the expectations are that law is going to be everything and this sort of speaks to the larger question that I also try to talk to law students about it’s really important for them, even though they are in law school to try to avoid becoming only law students. Because what happens is they come in and they’re people who are amazing, who have incredible gifts and skills and wonderful complicated interesting lives, and if they’re not careful, they become law students. They become people who do nothing but things that are related to their project as law students. They go to school and they study and they make friends at school and they study with their friends and they order takeout and they become law students, and that’s what it is.

I work in Chicago, which is like one of the most amazing cities I’ve ever been to where there are a million things to do. And I worry sometimes that my students only see Northwestern and they don’t experience the city and they don’t experience their lives as you Chicago people, you know, and what happens is they get very unhappy very quickly because being a law student is not a life, right? Being a law student is a step on the road to being a lawyer, which is great, but it is one piece of a bigger life. And problem number one is often that people want law school to be everything. And there are certain things law school can’t be. And some of the creative stuff, and I’m not trying to say that law isn’t creative or any of that, but I had this problem too, where I ran the risk that law school was trying to be everything and I was missing parts of myself. One of the things I had to do to stay a human while I was in law school was read fiction, right? It’s a very low-grade thing. It’s not like I had to do magical things or I didn’t have to go to every Broadway show or whatever. All the things I would have liked to do, I wasn’t great at doing all those things. But I did keep reading, because I found that if I didn’t read, I hated school. And if I read, if I had time to read, I could be a law student and I can enjoy being a law student because I had this core thing about myself that I kept.

And so one thing I try to encourage my students to do is keep whatever is core to them and make sure they keep doing it so that they don’t feel like law school is taking things away from them. And the students who come in with that creative impulse, some of the reason why they sometimes try to insert it into places where it doesn’t work as well as a lawyer is because there isn’t anywhere else for it to go.

Leah Haberman: What are the things that you do to just maintain your creative juices? I mean, you are writing young adult novels, I’m sure, and also being a law professor, what is kind of your creative practice?

Michelle Falkoff: Oh, I wish it were a consistent creative practice. I mean, I try to always have a writing project in play at any given time, whether I’m under contract or not. I have recently been trying to take my own advice and free myself up a little bit from some of the constraints that I’ve set for myself. So that’s a long-winded way of saying I’m trying to write for adults again. We’ll see if it happens. But I sort of have some YA books that I’m working on and I also have an adult book that I’m working on and I try to always set myself a new task. So with every book that I write, I’m trying to learn how to do something new. I mean, there’s always what the book is about, which is always different, but I also like to do little kind of self-constraints, if that makes sense.

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So one of the ways I keep it alive even when the writing itself is hard, is to set myself these projects to constantly be feeling like I’m learning. Because even though you learn from every new thing, there’s always like another thing you could be learning and I try to add on to that all the time, and the other thing is I still read constantly. I just can’t function without fiction being part of my everyday life.

Leah Haberman: I feel very similarly both on the reading front and I recently joined a creative writing group because I was like, “I miss it so much.” And so every Friday they send us a new prompt and sometimes I’m like, “Oh, this is something I would never write about,” but then I also try a different style of more of like an omnipresent narrator, which is not usually my style at all. And so it’s kind of fun to challenge myself in that way. And then I also feel like I’m a much better writer than I was before law school and it’s an interesting thing to clock of like I’m also a little bit older maybe I’ve just read more books, but it’s like, oh, I’m actually in a more effective communicator because of this too, and so it’s like, “Aw-shucks, I have to give law school some credit.”

Michelle Falkoff: I know, right? It’s so hard. But yeah, you’ve honed your skills, right? And you’ve become extremely intentional, I would imagine, right? And you’ve also given a lot of thought to the places where creativity has worked for you in law school and where you’ve had to reconceptualize it to kind of make it work for you. And I’m not at all surprised to hear that that’s having beneficial effects on your creative practice. It’s wonderful. And prompts are like horrible and great, right? Whenever you see them for me, at least, whenever I see a prompt, I’m always like no, that’s not what I want to be doing right now, and then when I try to do it, magical things sometimes happen. You can come up with entire massive writing projects from prompts that you didn’t like. They really can do so much good work.

Leah Haberman: Absolutely. One of the prompts was about the Wild West, which is I’ve never been a cowboy fan –

Michelle Falkoff: No, same.

Leah Haberman: I’m a queer woman, so I talked about a queer family moving to a small-town neighborhood, and that was their Wild West of leaving somewhere where it’s very safe to be queer and going somewhere else. And so I think letting a prompt also be limitless in the way when I represent my clients.  I also have to be a little bit creative and limitless with what my prompt of the case is, because sometimes you have to bring in different theories to win.

Michelle Falkoff: And it sounds like you just use the analogical reasoning skills that you probably developed in 1L to make Tod link right or help develop, at least.

Leah Haberman: Don’t tell my legal writing professor. I’d have to apologize.

Michelle Falkoff: I’ll never say a word. I promise.

Leah Haberman: I keep going back to what you said that law school doesn’t have to be everything, and probably what I’m telling myself throughout this interview is like, maybe my job as a lawyer doesn’t have to be everything, because I think I came into the interviewing being like, I want her to say that I can be like a novelist lawyer and that they are one and the same.

Michelle Falkoff: I wish they were.

Leah Haberman: And I think maybe it is like a good reminder for myself and listeners to be like, your job is not going to be everything. Your law school career is not going to be everything. So maybe I will do a creative writing class on the side. Doesn’t mean I can’t find creative avenues within the legal career, but it’s not going to be the know, meat and potatoes of my creative energy, and so that’s been incredibly helpful for me.

Michelle Falkoff: Sure, I’m glad.

Todd Berger: We’ll be right back after this. So, Leah, terrific interview. Professor Falkoff was incredibly interesting to listen to. I’m going to file that interview away in things I wish I knew when I was a 1L, but also things that I learned from even now having done this for a long time. After talking to Professor Falkoff, what are your major takeaways? What did you learn now as a 3L you wish you knew as a 1L?

Leah Haberman: I think that the larger reframe we did throughout the interview of kind of reconceptualizing creativity. I think I inherently see creativity as this free-flowing thing and something that is free flowing without boundaries is like antithetical to the law, where we have the law, but also boundaries within the profession of what you can and can’t do. And then for folks who are still listening at the end of the interview hearing, when I talked about writing prompts and she was saying that writing prompts can sometimes be like the best thing because they force you to write about something that you’re not used to within, if they give you a word limit or a character limit, it changes the game. And so I think for my takeaway is like seeing that as an asset and that now that I have as like a 3L, a better foundation of what the law is now, my creativity is the Swiss Army knife that makes me a better lawyer.

Todd Berger: When I was listening as someone who teaches Trial advocacy and sort of a recovering Trial attorney myself, one of the things I was really intrigued by was the idea that creativity is not just limited to writing, but there’s certainly a lot of creativity in Trial work. I was a criminal defense attorney particularly on the defense side. You get a set of facts and your client may or may not testify.

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You can argue reasonable inferences from the facts that you have, and you have to think about how you can put them together in a way that raises a reasonable doubt. And the more creativity you have in that process, I think the better a Trial lawyer you’re going to be.

Leah Haberman: As we’ve talked about for all of this, the goal of writing in a legal context is so different than in another context where we are trying to persuade someone for an outcome, and that’s true in the transactional sense and in the Trial sense. But I’m really glad that you brought up the specifics of Trial work, because I think creativity is so much more than just like you said, writing. And the best public defenders I’ve seen have theater backgrounds, and the way they construct their closing arguments feel like Shakespearean monologue sometimes, and it’s so beautifully done, and you’re just like jaw is dropped. And it’s not just in the movies about lawyers. There’re real lawyers who are talking like that, and I think that’s always really cool to say.

Todd Berge: Yeah, it really is. And that’s the thing about being a creative person, is you can be someone who has a theater background or maybe still involved in the theater or comedy or even in, I know lawyer is brilliant Trial lawyer that I know as a musician, plays in a band. And so the practice of law Trial work, but it doesn’t just have to be that. It can also be writing or whatever it is. For creative people, it can actually be another outlet of their creativity. It’s just a different mode of being creative, a different way to be creative, but I think can also be another part of your whole creative self. So hopefully our listeners kind of get a sense that you don’t have to look at the law school experience in sort of the classic trope that it drums the creativity out of you and then you just kind of go out there and you’re just a lawyer robot. I think, like you said, you can use creativity as an effective lawyering skill, and you can even think about being a lawyer as a way that expands creativity and kind of other mediums.

Leah Haberman: Well, thank you so much for the conversation today, and I hope that you got a lot out of it, and I hope our listeners did too. And I just want to reiterate to Professor Falkoff how much we appreciated her time and energy and her perspective.

Todd Berger: Before we go, if you haven’t yet, make sure to subscribe to the show on Apple Podcasts, Spotify or your favorite podcast player and be sure to share the show with your friends and fellow students. We want to hear from you, so send us your thoughts about the show or issues you’d like to hear from us in a review. We at the ABA Law Student Podcast would like to express our thanks to our production team at the Legal Talk Network and the professionals at the ABA Law Student Division.

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