China Law. Creatives Need Not Apply?
Leslie Forman over at the Beijing Corporate Training Blog did an interesting post the other day regarding a conversation she had with a Chinese lawyer on creativity. The post is entitled, "Creativity in the Context of Chinese Legal Work" and it relates how this Chinese lawyer insisted Chinese legal work mandates against creativity. This morning, Leslie started a discussion on this topic over at the China Law Blog Group on Linked in, here.
The key lines from the post are as follows:
He [the Chinese lawyer] kept saying, “I’m not creative.” In his work, it is rare for anyone to make “Be creative” a chirpy imperative. Legal work depends on both established procedures and clients’ expectations, and it would be quite odd for a manager to insist on explicitly creative output.Also, he mentioned that a Chinese manager would lose face if he admitted that he “himself cannot solve the problem in question.” In the rare circumstance that he would communicate such a thing, he would do so in a roundabout way that would both maintain his dignity and imply the desire for assistance.
Nearly a year ago, I said something similar in a post I did, entitled, "Working With Chinese and Korean Lawyers. The Big Four Issues With Each:"
The Chinese lawyer’s role is different. Chinese lawyers far too often see their role as doing what the client tells them to do, rather than telling the client what should be done. If a client calls me and says she wants to do A, my knee-jerk response is to ask why. The typical Chinese lawyer’s response is to say yes
Are Chinese lawyers really less creative (generally) than Western lawyers? If so, why?
I am not at all sure the division on creativity is a Chinese/American one. I actually find the division runs more along the lines of civil law versus common law countries.
What do you think? Also please feel free to discuss this here as well.
Comments (13)
Read through and enter the discussion by using the form at the endTwofish - January 21, 2010 7:43 AM
I don't even think this is a civil / common law difference. It may be a corporate / outside counsel difference.
Most corporate legal work is routine and somewhat dull. The thing that a lawyer does is to draft a contract. Most of the time, it's the same darn contract that you've been drafting for years. One thing that I think may be a China/US difference is that in the US, a lot of routine legal work gets done by paralegals who are just supervised by lawyers.
And that's really the way it should be. A creative lawyer is like a creative accountant or a creative surgeon. You really *don't* want a creative lawyer. There are situations where you *NEED* a creative lawyer, but those are situations in which you want to avoid.
If you *NEED* a creative lawyer, then chances are that you are in pretty serious trouble, and if you have a good creative lawyer, they'll charge you an arm and a leg.
The situation you want is that you ask the lawyer to do something. Lawyer gets the paralegal to type a standard contract, and everyone is bored silly. If you have to get the lawyer to do something non-standard and creative, then the billable hours start running up.
Twofish - January 21, 2010 7:47 AM
* Know exactly what you’re doing before you get started.
* Be careful not to offend.
* Get permission.
* Run it by everyone first.
* Criticize yourself at every step.
Depending on who you are working with, you can end up with huge amounts of creativity by working with these rules. One thing that I've found is that creative people often are *extremely* self-critical.
Leslie Forman - January 21, 2010 5:37 PM
Thanks Dan for posting this. I'm not a lawyer and I'm not that familiar with the differences between civil and common law, but I think the different roles of law in different places could be a good explanation for different attitudes toward creativity.
And thanks Twofish for your comment. I like your line about how no one *wants* a creative lawyer but sometimes if you are in big trouble you might *need* one.
I re-read the post on working with Chinese and Korean lawyers and this part particularly resonated with me:
3. The Chinese lawyer’s role is different. Chinese lawyers far too often see their role as doing what the client tells them to do, rather than telling the client what should be done. If a client calls me and says she wants to do A, my knee-jerk response is to ask why. The typical Chinese lawyer’s response is to say yes.
Here's one more piece of information that might be useful: the firm I've mentioned specializes in helping overseas firms apply for Chinese patents.
G.E. Anderson - January 22, 2010 12:41 AM
I was dismayed by a comment I read on Twitter yesterday. The poster, a current law student, was lamenting an exercise forcing her to prove guilty someone she knows for a fact is innocent.
I'm sorry, but if this is what counts for creativity, I would prefer lawyers have none of it.
ceh - January 22, 2010 2:52 PM
I once had a Chinese lawyer lamenting about a lack of creativity as well, but in a completely orthogonal way from your story. Example: client says to lawyer: I need a legal opinion from you that shows that our course of action is not forbidden under the relevant laws. Lawyer: I can't, because article 48 of law A clearly says it's forbidden.
After Lawyer 1 gets axed, Lawyer 2 comes up with a solution by issuing an opinion relying on a "creative" interpretation of article 12 of law B that would permit the conduct, notwithstanding law A.
So, sometimes it takes creativity to be a yes man.
Leslie Forman - January 22, 2010 6:27 PM
Greg,
What a weird way to corrupt the concept of creativity! I agree with you. Encouraging lying does not equal embracing creativity in my book. I think productive creativity comes from understanding boundaries of role - laws, math rules, time, money, client expectations, true facts of situation, etc. - and finding the best solution among many options.
Also, I asked the same question to different Chinese lawyer from the same firm, and he gave me a completely opposite answer. I blogged about it here: http://www.beijingcorporatetraining.com/2010/01/thanks-china-law-blog-and-more-lawyer-creativity-thoughts/
-L
Leslie Forman - January 23, 2010 7:36 PM
@CEH, I like your story a lot. I'm not a lawyer and I'm not sure of the legality of what you mentioned, but it is a good example of being creative and saying yes at the same time. Thanks for the comment!
-L
Simon Malinowski - January 25, 2010 11:05 AM
I can't comment on Chinese Lawyers, but this same sort of contrast in terms of creativity definitely seems to be present in other parts of Chinese society.
A number of years ago I spent a year studying at the Chinese University of Hong Kong, of which roughly 40% of the student population was from mainland China. There were a number of classes which were pretty much an even split; 50% Western Foreign Exchange students and 50% mainland Chinese students. It became clear pretty quickly that any kind of group project submitted by a group of Mainland students would be comprehensive and exhaustively researched, but that it would also be incredibly straightforward, and would follow the black letter instructions of the Professor (which was rarely the case among Westerners).
The explanation I got regarding the contrast in styles was based on their High School experiences; from the moment Chinese students start High School, all of their work is based on preparation for their University admissions exams and is heavily focused on memorization and technical skills. As a result of this, most of their later 'creative' work is very much inside the box (or so I was told). I don't know if this extends all the way up through Law School (and then as lawyers), but it was readily apparent at the University level.
Twofish - January 25, 2010 12:25 PM
Anderson: The poster, a current law student, was lamenting an exercise forcing her to prove guilty someone she knows for a fact is innocent.
So how do you know "for a fact" that someone is innocent unless you make an effort to try to demonstrate that they are guilty? The whole point of the system is to find out what the facts are.
Leslie Forman - January 26, 2010 1:28 AM
@Simon, thanks for sharing this story. I had a very similar experience when I was teaching at a Chinese university. In one early class, I played a song and asked the students what they thought of it. Complete silence. After a few moments, I asked the most talkative student in the class what he thought. "Excuse me, teacher," he said. "I want to know what you think first." I then explained that they could say it was nice, romantic, traditional, boring, interesting, etc. Once I gave them very clear parameters for what their opinions could be, the students answered my question.
As a teacher and trainer, I've learned to be very concrete in the questions I ask my students. When I say something like this - "Look at this picture. Tell me who she is, and the secrets that she is hiding from the world" - I get very creative responses. I think it depends on setting careful parameters and showing clear respect for the students.
-L
Doug - January 26, 2010 2:37 AM
The capability for creativity and the wisdom to know when not to use it is what a good lawyer needs. In negotiations, for example, a creative interpretation that has a slim chance of sticking might be good negotiating leverage. Most routine cases, e.g. contract law involve putting together a very clear agreement that covers all eventualities with cases that have tested all the language - this is not very creative nor should it be. When a client wants to take some legal risk (or has already taken some and is in a tight spot) then trying to figure out untested legal avenues and creative solutions within the law might be just what is needed - anything on appeal almost always includes this as appeal courts deal with non-routine applications of law (well, and dumb errors by lower courts).
The most interesting bits of law are the ones where creativity is needed since these are the ones that are not settled. In China, I would think there would be plenty of situations where the law is not settled and plenty of cases where the law is vague enough that a good (and creative) legal argument could be made on both sides.
Leslie Forman - January 31, 2010 4:25 AM
Thank you so much Doug. This is the best explanation I've seen for how creativity can and should fit into legal work in China :)
-L
Shred - January 31, 2010 2:35 PM
A few random points:
-anyone who says that contract drafting isn't or shouldn't be creative will never be great in commerce. At the highest level, contract drafting is all about seeing into the distance and building in solutions to problems that 99% of lawyers would not even anticipate;
-the Chinese lawyers I have worked with have run the gamut from 'no imagination whatsoever' to 'creative genius', just like the non-Chinese lawyers I have known. By far the most creative lawyer I ever worked with was Chinese, and by far the least creative lawyer I have worked with was Chinese.