As both a legal writing professor and a novelist, I’ve thought a lot about what it means to be a creative writer both in and out of the legal field. For a long time, my two careers felt separate—and perhaps even incompatible, sometimes.
But over the years, I’ve discovered many areas of overlap that I hope have made me a better writer and teacher. Here are some things I’ve learned and shared with students who struggle with what they often describe as the lack of opportunity for creativity in law school.
To start, I like to focus on the areas of overlap. The most important things I try to teach all writers, both legal and creative, involve empowerment and audience. Being an empowered writer means having complete control over every aspect of the writing and making every decision purposefully, from the overarching goal of the document to the most mundane of word choices.
A lawyer who has that level of control over every aspect of their case will do a good job for their client; a creative writer will be able to come as close as possible to achieving their own writing goals. The idea of empowerment is one I emphasize for all my students, and I hope it travels with them beyond their education and into their writing practice.
This concept of empowerment is consistent for me as a writer as well. No matter what kind of writing we’re doing, we need to be intentional—we need to be in charge. Making easy or convenient choices or letting things happen by default disempowers us.
It’s surprisingly easy to see where this happens: in law, for example, it can occur when defense counsel responds to a plaintiff’s brief point by point, allowing the plaintiff to control the narrative throughout the entire litigation. In a novel, it can occur when a writer leans on cliché, whether at the story or sentence level, and the narrative and writing feel familiar and boring.
When we take charge of the opposition brief and reframe the narrative, we empower ourselves and our clients; when we write stories that only we could write and only as we would write them, we empower ourselves and our readers.
The second place where law and creative writing overlap is in a focus on the audience. It’s crucial for lawyers to consider the audience when drafting any kind of legal document, and much of the time, the audience will dictate form, sometimes literally. Writing for a court means, at minimum, considering all the different rules of practice that govern the document, such as local rules, state or federal rules, and even rules of citation.
Writing a contract requires the inclusion of any number of obligatory provisions, along with whatever the parties have negotiated. And the parties won’t sign if the contract doesn’t accurately reflect their understanding of the agreement.
Creative writers have more flexibility, depending on what they’re writing, but there are category and genre conventions that writers can, and often do, take into account. Romance novels mandate happily-ever-after endings; novels about murder in which the killer is never revealed are unlikely to satisfy mystery readers. It’s the rare writer in any field who finds the question of audience irrelevant.
While talking about the areas of overlap is important, it’s equally important to talk about where legal writing and creative writing diverge. Being creative as a lawyer isn’t the same as being a creative artist. That’s not bad; it’s just important to understand the distinction.
There are many ways to be a creative lawyer, depending on what kind of law you plan to practice. As a litigator, you can make creative arguments; as a transactional lawyer, you can take a creative approach to how you craft deals; as a mediator or arbitrator, you can be creative in moving parties toward settlement; as a professor, you can suggest creative ways for the law to develop. These are but a few of the many ways to incorporate creativity into your practice.
It’s not impossible for lawyers to be creative at the structural or sentence level, but it’s not as common. This is where the distinction between lawyers and artists becomes, to me, more meaningful.
People who hire lawyers to help them or who encounter lawyers in their business and personal lives even if they didn’t hire them aren’t usually looking for structural novelty or linguistic artistry in their attorneys’ work product; these are often distractions from the main goal of solving problems, which is a lawyer’s primary job. Even lawyers unconstrained by client needs, such as law professors, are addressing audiences who have expectations of what legal communication entails.
While there’s room for endless variation in content, it’s unusual for legal documents to vary substantially from readers’ structural expectations. (As an example of conceptual creativity in the form of a relatively traditional law review article, I love Brian Frye and Maybell Romero’s “The Right To Unmarry: A Proposal,” which includes an actual proposal and acceptance in its introduction.)
But these ways of incorporating creativity into practice are most effective in practice, not necessarily in school. I sometimes start fall 1L classes with student introductions that include the students revealing something they love that isn’t connected to law. The answers are invariably delightful, and the students learn so much about one another. There are always musicians and bakers and travelers, and by the end of our discussion, we joke about what kind of band the musicians could start, or what the bakers should bring to our end-of-semester party, or who’s visited the most continents.
After everyone’s had a chance to speak, I remind them that these things they love to do are part of who they are. I add that they need to keep doing those things to remember who they are, or they run the risk of becoming only law students.
Being a law student is great; being only a law student is a recipe for unhappiness.
This is also true for lawyers: while lawyers have more opportunities to bring creativity to their work, their work shouldn’t be the only place they manifest that creativity or other aspects of their identity. It’s vitally important for people to remember that their job isn’t their entire identity (unless that’s something they choose).
People with interests outside of the law who let those interests go in service of their education or work tend to resent that education or work when it becomes clear how much they’ve given up. School doesn’t have to be everything; our jobs don’t have to be everything. We must be vigilant about reminding ourselves who we are and what we love and making space for those things; it’s the best path to happiness I’ve found.
I’ll end with a reminder: you’re the only person in charge of your career and life, and you get to decide what works for you. Over your career, there’s a very good chance you’ll have more than one job, and it’s up to you to make sure that job allows you to lead the life you want, whatever that means for you.
There’s no single path to follow. And just like an intellectual property litigator who becomes a legal writing professor and novelist, you may find yourself in a role you never could have predicted but that you love.
