Why Creativity is Essential to Great Lawyering

Sigalle Barness | September 21, 2022

On this week’s episode of Lawline's Lawyers Who Lead podcast, Sigalle interviews Parker Moore, principal at Beveridge & Diamond, and co-chair of the firm's Natural Resources and Project Development Practice Group and its National Environmental Policy Act (NEPA), Wetlands and Endangered Species Act groups.  A wetlands ecologist turned environmental lawyer, Parker shares how creative lawyering helps him provide counsel for the betterment of his clients and the environment at large. Listen to the full interview or read highlights of the interview below! Transcribed answers were edited for readability.

 

On Gratitude

Breakfast with His Children

 

Got up early and was able to make breakfast with my kids. And then my kids told me that I burned everything and then they recooked me breakfast, which I suppose is something that I'm gonna have to start doing more of and incorporate that into my daily routine is messing something up so that they will do it for me.

 

On Combining His Love of the Natural World with the Law

His Journey from Studying Wetlands to Joining an Environmental Firm

 

I never had any intention of being a lawyer. In fact, I'd always said, no, I would never be a lawyer. That was something that I believed firmly, until I became one. It really happened almost by accident. I have always loved being outside. My family was the type of family that would go camping every weekend. In the summer I would go fishing with my parents. And Boy Scouts out hiking, backpacking, and so it was just natural when I went to undergrad that I would focus my studies there, it's just what I was naturally drawn to.

I majored in natural resources, which was a combination of forestry and geology, because a huge component of that was having outdoor labs and going and looking at the landscape and learning about how geological formations are made and why the forest responds in a certain way.

After graduating undergrad, I ended up as a wetlands ecologist working for an environmental consulting firm. And so it was just more of the same. I was out tromping around the woods with the machete over my shoulder, cutting line to identify wetlands and see if there was threatened endangered species habitat. And if so, then looking for the species. 

Um, helping people get their permits, and get, authorizations from the Army Corps of Engineers from the fish and wildlife service. And one of the most incredible work experiences I've ever had was riding around the Potomac River in a Zodiac, looking at bald eagles flying up and down and monitoring their nests. And when they were laying eggs and seeing what the encroachment was of nearby development and whether that was having any effect on the nesting behavior. In short, it was just a remarkable job and I loved every minute of it.

But I was living in Northern Virginia, which is where the job was and it was tough to make ends meet on an entry level salary. And so I started talking with management of the company and they said, um, yeah, we can give you a promotion, if you do more mitigation design work, like basically rather than going out and identifying the impacts, you help people, find solutions to offset the impacts that their activities are going to have.

But to do that, you need a master's degree. Said, okay, no sweat. I can do that. So I started looking at the various master's programs in that area. Spoke with the people at Georgetown and GW and American and Catholic George Mason, basically every school in the Northern Virginia, DC area. And, without exception, the directors of the programs that I spoke with said, yeah, the program that we have would be a great fit for that. But if you're going to do that, why don't you, go get a JD instead, and there's a program in Vermont at Vermont Law School that offers a joint degree with a JD and then a master's study in environmental law that will give you the best of both worlds. So that at some point in the future, you decide that maybe you don't want to be out walking around the woods and getting poison ivy every summer and pulling ticks off you and running away from yellow jackets, then you might have an option for doing something that's more behind a desk.

I'd never been to Vermont and it was a great outdoor paradise. Went to Vermont Law School and fell in love with it. And within two weeks, I knew immediately that the legal side of this sort of work was where I wanted to be. But I still didn't wanna be a lawyer, as I thought of lawyers, I didn't wanna be in the private practice. So I had a job lined up, um, at, uh, the White House Council on Environmental Quality and was going to be working at the government agency and doing reviews of projects and the environmental analysis that were being done under the National Environmental Policy Act.

Unfortunately for a number of reasons, there was a hiring freeze that was put into place, due to a congressional investigation of that agency and my job evaporated before I'd even started. And so three weeks before the bar exam, I was sitting there trying to focus on getting my bar license, but also realizing that I had no job to apply it to.

And the person whom I was going to be working with at the agency said, you know, you've always told me that, uh, you don't want to be in private practice, but you need to go look at this firm. It's an environmental firm. That's all they do and I think it would be something that would be right up your alley. It's not like a traditional law firm, as you would think about it.

His name was Horace Gretchmel. He was the one that really oversaw the entire program. He was friends with the hiring partner at this firm and happened to know that they needed to fill an entry level spot that actually was open because one of my law school classmates had decided to stay in Vermont and work as an adjunct professor. So I went in, interviewed and fell absolutely in love with the firm, with the practice and, joined six weeks later. And I've been there now for 18 years.

 

On What Drew Him Toward the Legal Side of His Work

Looking at Problems and Identifying Different Solutions

 

It was the way of looking at problems and trying to identify different solutions that are available. Realizing that there was not a single right answer, that it's not like math. It is something where you can state your position and you can adopt the support for it. And you can be right at the same time that someone else is right with a completely different answer. That's one of the things that is kind of a double edged sword about law school is that they hammer into students over and over again, if you have precedent for something then you have your answer and that's the way you solve problems. Um, but at the same time, they do a decent job of explaining or teaching law students to think like a lawyer, which is you don't have to be wedded to the exact precedent that you're dealing with. You can extend precedent by analogy.

 

On the Importance of Extending Precedent

“Precedent Isn’t the End-All Be-All of Legal Practice”

 

They do a decent job of explaining or teaching law students to think like a lawyer, which is you don't have to be wedded to the exact precedent that you're dealing with. You can extend precedent by analogy.

But still, I think that one of the things that you see a lot with law students as they're first coming out of school is that they feel kind of shackled to the precedent mantra. And saying that if we have something and there's no precedent for it, then that can't be the answer. Um, but I think that as people start to really develop a level of comfort in their practice, they can extend beyond that and realize that precedent isn't the end-all be-all of legal practice and that, while it is a solution, it's an answer. It's not the only answer. And it really offers an opportunity for folks to expand their thinking about things and expand the way that law is implemented and really kind of change the thinking of established principles that are used in any arena of the legal practice.

Without creativity in lawyering, you would be stuck in a situation where the law is inflexible. It is not living. It doesn't develop over time. So realizing that precedent is really just a single answer or a single solution, is the wrong way of looking at it because it's rarely the only solution.

 

On Creative Lawyering

Identify Various Options and Present Them With a Range of Possibilities

 

Creative lawyering is something that I think is extremely important. For anyone to be comfortable in whatever job that they're doing, whether its lawyering, whether its accounting, although I'm not sure how creative accounting works for some folks.

When you're talking about things like lawyering, the ability to be creative is really, it's crucial. Because number one, no situation that you're gonna be presented with is going to be identical. You have to be able to think more broadly about what the issue is, what the clients' needs are, what the demands are, whether it's a scheduling issue, whether it's a funding issue, whether it's a policy issue. And then identify, not just one solution because rarely is there going to be one right answer for a client or infrequently is the first answer going to be the right answer or the perfect fit for the problem that they're facing.

And so, in my opinion, the best way to approach those things is to identify the various options that are available and to present them with the range of possibilities that you could do. And of course, there's going to be likelihood of success differences associated with each one of those, but presenting those different options to them, will allow them to say, you know, really what are we trying to accomplish here? What's our objective and which of these options is going to best meet our needs. And sometimes it turns out that the option that they choose is, is not the one you think they're going to. And it is going to be one of the ones that, uh, we'll call it more creative than, uh, the main line option that you've identified. Um, but a lot of times that's where being a lawyer becomes a lot of fun.

 

On Falling in Love with His Firm

Orienting His Practice to Support His Passion

 

One of the reasons that I really fell in love with the firm where I am is that they encouraged me to develop a practice area. Even though it was something that we did not specifically have at that time. 

I mentioned, um, I was a wetlands ecologist. I knew I wanted to do wetlands work and it just so happened that coincided with me starting at the firm and the Supreme Court taking up one of the most significant wetlands cases in the history of the Clean Water Act. 

At the time the firm where I joined, even though we were, and still are, one of the largest environmental law firms, did not have a dedicated wetlands practice because that practice group moved to another firm six months before I joined. And so I came in and said, look, this, uh, Supreme Court just, uh, granted cert in this generational wetlands case, and we have to be involved in this. We have to be writing an amicus brief that is really gonna be something that will be considered by the justices and hopefully shape the face of wetland's regulation going forward. The firm said, all right, let's do it. The mentors whom I've been working with said, all right, you come up with the strategy and the game plan and we'll help you make the contacts and we'll give 'em a pitch and cross our fingers and see if they bite and they did. Resulted in us writing a brief that I'm still proud of 18 years later for a group of real estate interests that was cited approvingly by Justice Scalia and the plurality decision that he issued. 

Unfortunately, the Supreme Court split on its decision down a four one four way, which makes it even more chaotic than it was prior to the decision, but it was still really cool. It showed me that the firm will support me and anyone else that wants to develop their practice and orient that practice around the things that they're most interested in. Because if you have that passion, that's what allows you to connect with the clients, allows you to connect with regulators and with the opposing parties, and to speak about those issues.

 

On the Benefits of His Pre-Law Environmental Experience

 “I Lean On That As Much As I Lean On My Legal Training”

 

I would say that I lean on that as much as I lean on my legal training. It really is a fundamental aspect of my legal practice. I mentioned that the Wetlands and Endangered Species practice at my firm had moved on shortly before my arrival to another firm.

So I came in and the firm management really supported me in trying to reestablish that practice from day one. And one of the things that I started noting as I was going out and doing marketing to potential clients is a lot of the things that were being done and the strategies that they were implementing were focused on let's get our permits and let's build our projects. And a lot of times the reason that I knew about these things being done is because they ended up in the courts. And the reason they ended up in the courts, because there was some aspect of the permits or the authorizations that the agencies were issuing that were vulnerable to legal challenge.

And a lot of times that resulted in the permits being overturned, the environmental documents being overturned, and projects being slowed down and the price tags of those projects ballooning. 

So the perspective that I started sharing during the pitches that I was doing to clients and when I'd go out and spend time talking to people at conferences or going out to lunch was, why don't we incorporate early project siting and planning into the process rather than designing the project first. Let's focus on the siting of the project in a way that minimizes the impacts to the natural resources. Whether it's species or wetlands or historic resources, tribal resources, national forest, um, minimize the nexus that you have with any sort of trigger or a federal regulatory program. And you minimize the risk of the project. 

It may take you a little bit longer up front to do that, but in the long term, you're reducing the risk that you're facing. Um, your costs are gonna be more certain. Your schedule's gonna be more certain. And by the way, it's also a great story that you're doing what you can, as a good corporate citizen to be mindful of the environment. And that started to resonate with folks. So that's where my practice really started to take off at that point and it has grown ever since.

Um, talking about large scale infrastructure. I mean anything from highway projects for state departments of transportation to multi-state or interstate pipeline projects to massive industrial projects, commercial, residential development projects that are really leading projects for the particular companies that are the proponents of them.

So when you're talking about large scale projects like that and if you're not evaluating up front, the siting opportunities that they have that could minimize impacts, then you're almost guaranteed to hit them.

 

On Providing Impactful Counsel to Clients

Be a Resource and Flag and Provide Solutions to Potential Issues 

 

Let's be honest, there's, there's a lot of luck in all of legal practice and, and in developing a practice. But some of it comes from making your own luck and recognizing opportunities when they appear and being able to look around the corner and understanding the area in which you want to build the practice so that when those opportunities start to appear, you recognize them and say, all right, this is the thing that's going to be most impactful to people. This is the thing that is going to become a problem five years down the line, 10 years down the line.

I'd mentioned earlier that I was giving pitches. What I actually was doing was going out and talking with people. I wasn't going out with an elevator speech and saying here's the reason you need to hire me. What I was going out is talking with them and saying, so what sort of issues are you guys looking at? What's keeping you up at night? And then doubling down on that and saying, well, I've got one more thing that's gonna keep you up at night. But here's how you get ahead of it.

So just being a source of information so that they can be aware of what is coming and then not only flagging for them something that's going to cause them problems in the coming years, but give them solutions that they can adopt before they become problems. And I’ve found that, that it's something that's just really helpful to people and it's something that potential clients have almost universally been receptive to.

 

On What Leadership in Law Means

Setting an Example for Colleagues, Clients, and Competitors

 

Leadership in law means setting an example for not only your colleagues, but your clients and your competitors. Showing anyone, um, who's willing, willing to listen, that there are a number of ways to reach the same goal. And that no single answer is necessarily the right one.

 

On What People Misunderstand About His Work

There are No Good or Bad People in Environmental Law

 

Anytime I go to a cocktail party. Anytime I go to a wedding, anytime I meet new people and they ask the inevitable question of, you know, what do you do? And I say, I'm an environmental lawyer and they say, good guys or bad guys? And just like with the law itself, there's no right or wrong answer. So what I try to explain to people is that there are no good guys or bad guys when it comes to environmental law or law in general. The way that you solve or help a client solve their problems is what leads to good results or bad results.

 

On a Piece of Practical Advice for Leaders in Law

Keep Your Eyes and Ears Open for Opportunities

 

Keep your ears open and keep your eyes open. You never know when an opportunity is going to present itself to really have an impact on the practice or on individual clients or on your colleagues, and really allow you to help them achieve what they want to.

 

On Who Shaped His Journey in Life

His Grandmother

 

My grandmother. My grandmother, of anyone in my family, was probably the biggest proponent of the outdoors. She was the one who taught me how to set up a tent. I caught my first fish with her. And she also happened to be one of the smartest people I ever met. So yeah, she was probably one of the biggest early drivers of where I am now.

 

On One Thing He Would Change About the Legal Industry

The Formality of the Law Firm Environment

 

If there's one thing I would change about it, it's the formality of it. The questions that lawyers are asked to answer are extremely important. There's a feel that when you're in a law firm environment, and I'm not speaking necessarily about my law firm, but that you can't have fun with your job. Um, and you can have fun and do excellent work at the same time. In fact, I think you do better work when you are having fun. Um, so I think that everyone needs to loosen up a little bit.

 

On Self-Care

Spending Time Outdoors with His Family

 

So I happen to live in one of the most beautiful areas of the country, as far as I'm concerned, in coastal South Carolina. So any chance I get, I'm outside with my family. We go saltwater fishing pretty much every weekend. We go camping all the time, to spend time together without being plugged in. And really just take time to enjoy things that don't involve work. I think that's the easiest thing to do, but it's the hardest thing to set time aside for.

Lawyers Who Lead is a weekly podcast that celebrates lawyers who are making powerful changes through extraordinary leadership. Each week, Lawline’s Chief Storyteller, Sigalle Barness, interviews a lawyer who is driving meaningful change in the legal industry. Guests represent a diverse and exciting range of experiences but with one common thread, the pursuit of bettering the legal profession. 

Each episode explores the guest’s journey to leadership, the underlying principles that helped them make an impact, and devises ways listeners can apply these concepts in their own lives.

Subscribe or follow on Apple Podcasts, Spotify, Google Podcasts, Audible, or anywhere you listen to your favorite podcasts. You can also follow @lawyerswholead on Linkedin, and Twitter. Let's celebrate and continue to build a community of leaders in law together.

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About the Author

Written by Sigalle Barness

Sigalle champions and grows Lawline’s brand awareness through impactful stories that are authentic, meaningful, and thought provoking. She designs communications strategies that underscore the why and how behind Lawline's work. Sigalle is an avid lover of music, video games, blogging, asking questions and all things food. She is also fluent in Hebrew and enjoys writing fiction, traveling and scuba diving.

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