A local criminal court judge said to me, “I could never do what you do [that is, defend the accused]. I’m not creative enough.”
It is true that defending people well requires creativity. It also requires imagination, curiosity, flexibility, adaptability, and a willingness to take risks. In other words, it takes a childlike mind. A defense lawyer who thinks like a grownup, suppressing the ideas that are likely to be unpopular or unsuccessful, is often going to fail to find the best defense. (This may help explain why so many of us are lousy businessmen.)
We are all born with imaginative, playful, flexible minds (Pablo Picasso said, “Every child is an artist. The problem is how to remain an artist once he grows up.”). With the help of an educational system and a culture that tell us to “grow up,” most of us get over it: the childlike mind is still there, but suppressed, more or less, under a layer of “maturity.”
Judging well does not require a childlike mind. When a judge exhibits flexibility or spontaneity in his her judging, he stands out from the pack. He’ll get a lot of attention, much of it unfavorable. For example, Harris County misdemeanor Judge Larry Standley told a guy, as a condition of probation, to take yoga classes, and it made national news.
Similarly, prosecuting people requires very little creativity. A prosecutor can be unimaginative and angry and still win most of his or her cases. When a prosecutor demonstrates imagination or playfulness, it gets attention. For example, when Harris County prosecutor Kelly Siegler reenacted a stabbing in a murder trial it made national news and almost turned her life into a TV Show, even though this is the sort of reenactment that great criminal-defense lawyers do in courtrooms across the country every day.
The judge who said she could never defend because she lacks the creativity is probably wrong; there is hope. We can uncover our childlike minds and rediscover our natural creativity. I know people who were bitter and dull as prosecutors who, when there were human beings depending on them, turned into wonderfully creative defense lawyers. (Fortunately, there is little motivation for a prosecutor to be creative when prosecuting.)