By Dr. Ken Broda Bahm:
I try not to be too self-referential in this blog, but this time around I have an illustration that’s a fitting parallel to the challenges of trial messaging. In the two years since we ramped up this blog and moved to our current twice-weekly schedule of posting on Monday and Thursday mornings, I’ve settled into a process that’s allowed me to spend most of my time consulting (that’s my real job), while still producing a regular stream of what I hope is good content for litigators. While I occasionally have a couple posts stacked up in advance, I’m usually writing with the goal of “just in time” publication. But for me to have a post ready for Thursday, I really need to have my topic firmly in mind on Monday. In fact, I usually try to decide on a topic immediately after the last post is up, or even a little earlier. Why? Not because it takes three days to write the post, but because the idea takes time to incubate. I need to have a period of reflection in which the idea kicks around in my head. Consciously or unconsciously, that initial fuzzy idea gradually forms itself into a clear point, some useful examples, and accessible language.
When I actually sit down to write, generally the night before or the early morning of the posting date, it only takes a couple of hours to hammer it out. But I’ve found that I cannot pick a topic at the last minute: Without the incubation period, I’m lost. We’ve all probably had the same experience: Problems are resolved and ideas seem to appear out of nowhere only after we’ve allowed things to sit for awhile. And that jibes well with the research on problem solving. An incubation or resting period appears to be important and valuable for most of us when we are looking for creative solutions and ways around mental blocks. And the process of litigation is nothing if not a drawn-out series of challenges and obstacles that call for innovative thinking. So, it is a practical question for advocates and other members of the trial team: In your haste, are you allowing time for the incubation of your best ideas?
Why Does Incubation Matter?
Lawyers are used to seeing inspiration as a product of perspiration, and it is true that results take hard work. But creative results also appear to require something else. A recent post in the Psyblog takes a look at the question of incubation. “It’s wonderful,” the post notes, that the mind “can solve problems unconsciously while we’re getting on with day-to-day life.” For litigators looking to work around case challenges, come up with themes, or address a tricky witness, that ability to use our background brain is a definite advantage.
The idea of a role for incubation in the creative process has been around for a long time. As discussed in Psyblog, it is one of the four stages originally identified by Graham Wallas, an English psychologist, in 1926.
Stages in Creativity
- Preparation: A problem is isolated, organized, and targeted.
. - Incubation: The problem is allowed to rest, free of conscious processing.
. - Illumination: A solution enters into consciousness.
. - Verification: The solution is tested and applied.
On the question of why that incubation step often seems to be necessary between preparation and illumination, there have been two schools of thought. Some psychologists have held to the simple view that the brain just needs and benefits from rest. Other psychologists, though, have argued that incubation isn’t passive rest, but is instead an active, albeit unconscious process. One recent study seems to offer an answer to this intriguing question of exactly what is going on during incubation.
The Research: Support for Active Incubation
A group of researchers from the University of Sydney (Gallate et al., 2012) set out to test the incubation effect in people’s ability to solve problems, even when they aren’t consciously working on them. Dividing research participants into two groups, they gave each a standard creativity test that involved listing as many alternate uses for something (e.g., a chair) as they could think of in two minutes. Each group was then given a distracting activity (solving a series of math problems), then they were asked to complete the creativity task again. What separated the two groups was this: One group was told prior to the distracting math task that they would be returning to their list of alternate uses, and one group was simply surprised after the math task that it was now time to return to the alternate uses list. While both groups reported that they did not consciously continue thinking about their list while solving math problems, the group that knew they would be returning to that task did substantially better on it.
The researchers interpret that to mean that, even as their minds were consciously engaged elsewhere, the time nonetheless paid off, indicating that at least part of their mind continued to generate creative ideas. This also explains why incubation is the second, not the first, step. In other words, it helps if you are motivated by the knowledge that you’ll be returning to a task. To return to the blog for a moment, this explains why I insist on deciding on a topic before incubating on it. Just like the chicken and the egg: Without fertilization, no amount of incubation is going to help. Incubation isn’t procrastination because preparation comes first. According to Psyblog, “If you’ve looked at the problem from more angles before you start incubating, there’s more chance your unconscious can give you some answers.”
One additional finding of the study was that the more creative a person is, the more they benefit from the incubation period. That also indicates that there is more going on than simply rest when an idea is allowed to germinate and mature inside our heads.
Recommendations: Incubate Your Case
Okay, you say, that is some interesting information on creativity and problem solving, but what are the practical implications for litigators? Good question! The answer is that even the busiest trial teams on the tightest deadlines need to make sure that the true creative work has time to breathe. That is the big takeaway, but let me suggest a few applications.
Incubate Your Trial Message: Don’t start thinking of your story and your theme on the eve of trial. Instead, conduct a strategy session early on just to get the juices flowing. Then, let it sit a bit. When you return to it, it will be stronger.
Incubate Your Settlement: Don’t expect immediate action, or even necessarily a reaction, in response to your settlement offer. Don’t set an artificial deadline. Instead, let the offer sit a bit so that the other side can process, think, and come to terms.
Incubate Your Witness: Don’t treat preparation for a problematic witness as a one-shot deal. Particularly when there are serious concerns, the witness won’t learn to apply solutions instantly. Instead, the witness may need to ruminate on and incorporate solutions, and you’ll need a second look to ensure that the fixes stick even after time away.
In the long road to and through trial, there are countless other settings that require creative thought and breaking through obstacles. All of those can benefit from a little time and space for reflection. Of course, there is just one remaining question (that I’ll leave to the law firm administrators): Is an incubation period billable time?
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Other Posts on Creativity:
- Create the Conditions for a Creative Trial Strategy
- Subvert Stereotypes: Free the Attorney, the Expert, and the Juror
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Gallate, J. et al. (2012). Creative People Use Nonconscious Processes to Their Advantage Creativity Research Journal, 24 (2-3), 146-151 DOI: 10.1080/10400419.2012.677282
Photo Credit: Grendelkhan, Flickr Creative Commons