Creative Problem Solving
by
Mark Broida

While it is essential that we teach students the skills necessary to practice law, we should also teach that there is more to practicing law than simply being a good technician. At my law school, the home of the William J. McGill Center for Creative Problem Solving, we introduce students to the very concept for which the center was named. In this article, I discuss how I use an employment discrimination hypothetical to introduce and engage my first-year legal skills students in how to find creative solutions.

At the beginning of class, I review "Joan's" story. Joan's goal during her final year of law school is to find a position with a small- to medium-sized San Diego law firm where she can practice employment law exclusively. At the beginning of the fall semester, Joan interviews at the offices of Putz and Bonehead, a small San Diego employment law firm. Her interviews with the first three attorneys go well. Her final interview is with the senior partner Bob Bonehead. Bonehead tells Joan his colleagues are very impressed with her knowledge, attitude, and accomplishments and "if she were a man" he would hire her in a second. He explains, however, that many of the firm's clients are traditional labor unions, such as the Teamsters and the Longshoreman, and those clients would be uncomfortable with a woman handling their collective bargaining negotiations and other matters. Bonehead ends the interview by telling Joan he is convinced she will be a success with a firm that is a "better fit." Joan is disappointed and angry. She wants to file an employment discrimination claim against Bonehead's firm.

After describing Joan's situation, I ask students to play the role of "Pat," an experienced attorney in San Diego. Joan wants Pat to file a discrimination claim on her behalf and to be as aggressive as possible in litigating the claim to make sure to "teach a lesson to that sexist swine." I then distribute a handout that identifies five important steps to creatively solve client problems. (This handout, as well as some of the ideas expressed in this article, were initially developed by my colleagues, Professors Janeen Kerper and Jamie Cooper.) I briefly introduce each step and tell students that we will be using these steps to evaluate Joan's problem.

1. Obtain an initial description of the problem

The goal of the first step is to impress upon students that lawyers must carefully listen to their clients and ask the right questions to help clients fully and accurately describe their problem. Clients often come to lawyers with a limited or inaccurate understanding of their problem and whether they have a legal claim.

I assume the role of Joan and give students five minutes to ask additional questions. Most students ask relevant and reasonable questions that strictly relate to the potential legal claim. But as we proceed with this exercise my goal is to get the students to expand their view of Joan's problem beyond her need to take legal action against Bonehead.

2. Identify underlying needs, goals, and objectives

This step demonstrates that the problem the client presents is not always the real, underlying issue. To get to the real problem, a good interviewer should be cognizant of both legal and non-legal concerns.

Again as Joan, I have the students ask questions to understand Joan's underlying concerns, questions such as: "How would your life be different if this problem were solved?" and "What would you be able to achieve if this problem were solved?"

Joan's answers make clear that although she would like to take some action to discourage the type of discriminatory behavior engaged in by Bonehead, her underlying, broader, and more significant concern is to find an employment law job in San Diego. She also explains that she is not interested in a court forcing Bonehead to hire her. Additionally, she has not really thought about alternatives to filing a lawsuit or what effects her lawsuit might have on her job search. Based on our role play, most students begin to see that Joan's real problem involves finding a job.

3. Reframe the problem more broadly

Narrowly framing a problem (as Joan initially did) can limit available solutions. I ask the students to reframe Joan's problem in a broader manner than merely wanting to take legal action against Bonehead. Reframing the problem is particularly dramatic and important. I say: "If you were the hiring partner for another San Diego law firm and you knew that Joan had sued Bonehead, would you interview and hire Joan?"

Many students now begin to realize that Joan's narrow solution of immediately suing Bonehead not only limits her alternatives, it might work against solving her broader and more significant problem: finding a job.

4. Brainstorm solutions

This step has students identify non-litigious, less confrontational solutions that may apply to the reframed problem. To encourage students to think as openly and creatively as possible, I list their suggestions on the board without editing or critiquing them.

5. Evaluate solutions in light of broader needs, goals, and objectives

The goal of this last step is to teach students to evaluate the proposed solutions. I have the students compare how the proposed solutions correspond to the client's underlying needs, goals, and objectives. They rate the proposed solutions based on their knowledge of the client gained from the client interview.

First, students have reasoned that Joan probably needs more money, time, and energy to improve the quality of her life. Immediately filing a suit against Bonehead appears inconsistent with these broader needs. While there is no assurance that Joan can win her case or extract a favorable settlement, she can be assured that the financial and emotional costs of time-consuming litigation will be significant.

Second, students considered that Joan wants an employment law job in San Diego. Immediately filing a lawsuit or a complaint with the local bar or publicizing Bonehead's discriminatory remarks in a local newspaper would appear to go against Joan's broader job interest.

Third, students considered Joan's desire to discourage discriminatory behavior without jeopardizing her job search. She could alert her school's career services office to Bonehead's behavior so the school may decide to no longer permit the firm to interview on campus.

After comparing and rating the proposed solutions, students devised a more measured approach to Bonehead. Joan could write thank you notes to the lawyers she met in the firm, telling them how impressed she was with the firm and how disappointed she is that they will not hire her because she is a woman. This might encourage firm members to investigate what Bonehead said to Joan and, perhaps, reconsider the firm's actions. At the very least, Bonehead firm members may feel obligated to help her job search by recommending her to their employment law colleagues around town.

Conclusion

It is important to make students aware of how they can use creative problem solving to assist clients. The hope is that when students become practitioners they will demonstrate to their clients and other attorneys the advantages of thinking carefully and creatively before filing a lawsuit.