By Dr. Ken Broda Bahm:
Some computer scientists recently had to get creative about creativity. The researchers (Jordanous & Keller, 2016), from the Universities of Kent and Sussex in the UK, have been looking at computer-based intelligence, and specifically the ways computers can be assessed as exhibiting creative behaviors or not. Of course, that is what makes for “artificial intelligence” or AI. For example, a computer might be able to beat a good chess player with the raw processing power of simply considering more possible moves, but that computer probably won’t have the creative spark of a Bobby Fischer. At least not yet. But as we make strides toward AI, how do we assess whether the computer and the programming is actually exhibiting creative behavior or not? That is what the researchers sought to operationalize.
Dr. Anna Jordanous, a computing expert, worked with Dr. Bill Keller, a language expert. Noting that “creativity,” is essentially a human concept, they started with the question of “What do we mean when we talk about creativity?” Through a large-scale language analysis, they found 14 different meanings for the term. Now, I am prone to viewing things through the lens of trial persuasion and pretrial research and strategy, so naturally my first thought was to wonder what messages these 14 modes of creativity might carry for my own line of work. In this post, I will play that out, sharing each of the authors’ identified creativity types, their own definition (in italics) followed by my own thoughts on how it applies in a legal persuasion setting.
1. Active Involvement and Persistence
Being actively involved; reacting to and having a deliberate effect on the creative process. The tenacity to persist with the creative process throughout, even during problematic points.
Be engaged in the creative parts of case strategy from the very beginning. Don’t just think of theme when you sit down to write your opening statement, but begin as early as possible. In the process, don’t shy away from the problematic parts, but embrace them. Choose a theme or trial message that speaks directly to your weaknesses.
2. Dealing with Uncertainty
Coping with incomplete, missing, inconsistent, contradictory, ambiguous and/or uncertain information. Element of risk and chance—no guarantee that information problems will be resolved. Not relying on every step of the process to be specified in detail; perhaps even avoiding routine or pre-existing methods and solutions.
Uncertainty is a part of trial process. Particularly in a jury trial context, trial lawyers are fond of warning clients that, “Anything can happen.” Instead of taking a “who knows?” approach to that uncertainty, however, experienced litigators know to speak about probabilities, and to do so in as grounded a fashion as possible. A mock trial won’t predict your trial outcomes, but will help in the case assessment process of putting some boundaries around the uncertainty.
3. Domain Competence
Domain-specific intelligence, knowledge, talent, skills, experience and expertise. Knowing a domain well enough to be equipped to recognize gaps, needs or problems that need solving and to generate, validate, develop and promote new ideas in that domain.
The domain is your case, and creativity within that domain means knowing the unique strengths and weaknesses of that case. Particularly as litigators gain experience, it is tempting to rely on truisms or general experience. But knowing other cases and trials inside and outside of your venue won’t tell you about the unique issues and dynamics of the case you’re now bringing to trial. Cases follow some common patterns, but every story is unique. When you can, test its specifics in a mock trial or a focus group.
4. General Intellectual Ability
General intelligence and IQ. Good mental capacity.
How intelligent is your trial team? In all likelihood, the capacity is very high. At the same time, the composition and structure of that group will determine its overall intelligence and outlook. A group with uniformity and strong central leadership, for example, promotes groupthink, while a team with greater diversity (or, some research says, simply more women even) will exhibit greater group intelligence, making fewer assumptions and fewer mistakes.
5. Generation of Results
Working towards some end target, goal, or result. Producing something (tangible or intangible) that previously did not exist.
It is easy to think of the outcome that you want in litigation: You want to win. But at the process level of developing a strategy, what is the work product or the result? Instead of seeing “strategy” as the sum total of all your evidence and arguments, I think it helps to focus on strategic outcomes. After a mock trial or a focus group project, you shouldn’t just have charts and lists of strengths and weaknesses. In addition to that, you should also have a recommended theme, silver bullet, and structure.
6. Independence and Freedom
Working independently with autonomy over actions and decisions. Freedom to work without being bound to pre-existing solutions, processes or biases; perhaps challenging cultural or domain norms.
Jurors aren’t the only ones who need to keep an open mind. The need to free oneself from pre-existing solutions and biases is paramount for the trial team. Just as we ask jurors to set aside their assumptions and hear the case with an open mind, attorneys need to do the same. In voir dire, for example, the questions are rarely neutral, and some approaches can “prehabilitate,” or lead jurors away from an honest expression of bias.
7. Intention and Emotional Involvement
Personal and emotional investment, immersion, self-expression and involvement in the creative process. The intention and desire to be creative: creativity is its own reward, a positive process giving fulfilment and enjoyment.
The best attorneys I have worked with have been incredibly involved in their cases. They’re not just putting in time on the case and shepherding it through the process, but instead are at least a little obsessed. They think about the case even when they aren’t billing for it. Finding enjoyment in the process and attaining that condition of high “flow,” or the ability to work effectively but without strong conscious effort or will, helps to set the conditions for creativity.
8. Originality
Novelty and originality; a new product, or doing something in a new way; seeing new links and relations between previously unassociated concepts. Results that are unpredictable, unexpected, surprising, unusual, out of the ordinary.
Creative results often require novelty in the approach. For parties, witnesses, and attorneys, that can mean finding ways to violate expectancies or break out of a mold. It can mean identifying stereotypes that fact finders will bring and looking for ways to convey a contrast to what jurors might assume. A corporate party that labors under anti-corporate bias, for example, can see an advantage in beating expectations by performing with greater honesty or altruism than jurors associate with big business.
9. Progression and Development
Movement, advancement, evolution and development during a process. While progress may or may not be linear, and an actual end goal may be only loosely specified (if at all), the entire process should represent some progress in a particular domain or task.
When developing the story, or in laying that story out for a judge or a jury, it is important to include and convey a progression. Repeated emphasis on the same point does not persuade as well as an unfolding evolution of a story or argument. The, “wait, there’s more,” promise can help in addressing your audience’s implicit counterargument, and the division of content into chunks or chapters also helps to make the facts and arguments easier to retain, recall, and use in later deliberations.
10. Social Interaction and Communication
Communicating and promoting work to others in a persuasive and positive manner. Mutual influence, feedback, sharing and collaboration between society and individual.
When good strategy is the product of a team approach, then it matters greatly how that team communicates within their own ranks. Following one opinion leader, like lead counsel, does not work as well as fostering a critical culture where everyone is allowed to contribute ideas and to disagree. Ultimately, a decision has to be made, and ultimately that decision probably comes from the first chair. But along the way, the ability to constructively fight within your team results in better idea generation, better criticism, and fewer mistakes.
11. Spontaneity/Subconscious Processing
No need to be in control of the whole process; thoughts and activities may inform the process subconsciously without being inaccessible for conscious analysis, or may receive less attention than others. Being able to react quickly and spontaneously when appropriate, without needing to spend too much time thinking about the options.
Going to trial means having a plan, but it also means being willing to continuously adjust that plan in response to the dynamics of the trial. Reacting to the unexpected is key. The same is true for a hearing and for other interactions with your judge. Being able to handle the high participation of a “hot bench,” for example, requires the ability to improvise with structure, and to immediately and seamlessly make the judge’s top priorities your top priority as well.
12. Thinking and Evaluation
Consciously evaluating several options to recognize potential value in each and identify the best option, using reasoning and good judgement. Proactively selecting a decided choice from possible options, without allowing the process to stagnate under indecision.
Decisions need to be made in the pretrial phase and research — the focus group or mock trial — helps to make those decisions in a grounded way. Use research to assess and select from among the available options. Juror comments can also help to expand the number of options, since unexpected reactions often suggests a new way to address an issue. In the process, it is important to control for the “TMI effect,” and remember that more information does not necessarily lead to better decisions. The best strategic discussions and your mock trial results are focused on the core of the case story, not on its periphery. So getting that “thin slice,” means relying on relatively short summaries, fewer exhibits, and short witness clips.
13. Value
Making a useful contribution that is valued by others and recognized as an achievement and influential advancement; perceived as special, ‘not just something anybody would have done’. The end product is relevant and appropriate to the domain being worked in.
The bottom line of creativity, of course, is the quality of the result. The right approach can be a matter of common sense, but it can also be a result of a unique thought that would not have just emerged from anyone. In order to hatch those ideas, it helps to incubate, or to let the idea benefit from a period of unconscious reflection. It also helps to make sure that you and the team are taking advantage of the good forms of stress while avoiding the bad.
14. Variety, Divergence and Experimentation
Generating a variety of different ideas to compare and choose from, with the flexibility to be open to several perspectives and to experiment and try different options out without bias. Multitasking during the creative process.
Creativity is also a product of options. If you see only one solution, then you’re probably leaving something out. One of the best uses of a mock trial, in my experience, is to experiment with different approaches to see how they feel and how they work. Test different scenarios in order to vary and compare the circumstances, the admissible evidence or law, or the strategic approaches.
Lawyers, trial teams, jurors, and judges aren’t computers, of course. But reviewing the researchers’ list of 14, it seems like creativity has a constant quality to it, whether it is in an AI context or the context of human persuasion.
______
Other Posts on Creativity:
______
Jordanous, A. & Keller, B. (2016). Modelling Creativity: Identifying Key Components through a Corpus-Based Approach. PLOS ONE, 2016; 11 (10): e0162959 DOI: 10.1371/journal.pone.0162959
Photo Credit: Michael Coghlan, Flickr Creative Commons