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What is Preventive Law?

General Features

Preventive law is comprised of legal and practical principles for anticipating and avoiding legal problems.  The goal of preventive law is to provide for the "legal health" of individuals and business entities.  The concept is a familiar one in the context of medicine.  There is now a clear recognition that the most successful medical treatment is prevention.   While the same concept applies to the state of a person's or business' legal well-being, the recognition of preventive law as the most desirable model for delivering legal services is of more recent origin.

Law students still learn about the practice of law in the context of court decisions that address the rights of litigants after the damage is done. And the public often looks upon lawyers as persons who should only be consulted in dire circumstances. As a consequence the emphasis in legal practice has historically tended to focus more on how to advocate a client's legal rights after a dispute has arisen. And in far too many cases clients have not consulted with lawyers until it was too late to avoid a legal confrontation.

Preventive law, in its broadest sense, seeks to encourage new methods and concepts for how legal services can be delivered in the future to avoid conflict and disputes. And in the process it seeks as well to help the public understand how both individuals and business entities can most effectively create and maintain an improved quality of legal health. While the emphasis in preventive law is to manage facts and events in such a manner as to avoid unwanted legal consequences, it has a natural connection with concepts of alternative dispute resolution.

Clearly some legal services today include strong elements of "prevention".  Planning for real estate transactions, tax and estate planning, and various legal services provided to corporate clients are examples of Preventive Law practice. Yet the broader purpose of preventive law goes much further. It includes the entire "legal health" of individuals and business entities.  Preventive law techniques for individuals include such services as the individual "legal checkup".  For corporate clients, it embraces all forms of legal compliance and legal audit.

There are two significant differences between preventive legal practice and traditional legal practice.   The first is that the practice of preventive law deals prospectively with fact patterns that may arise in the future (hot facts) while traditional legal practice deals retrospectively with established facts concerning events that have occurred in the past (cold facts).  The second difference is that in traditional legal practice the ultimate decision maker is usually a third party, such as a judge or arbitrator, while in preventive legal practice the ultimate decision maker is the client, acting on the advice of an attorney.  The job of the traditional lawyer is to act as a historian, interpreting past events in a light that is most favorable to the client.  The job of the preventive lawyer is to help the client to shape future events so that the facts will reflect favorably on the client.  This task is more difficult than that of the traditional lawyer because of the uncertainty of future events, but it more financially rewarding to the client because it reduces legal costs as well as potential litigation costs.

A Comparison With Preventive Medicine

The roots of preventive law lie in preventive medicine.  Many of the principles used to formulate preventive law methods and analyses are modifications and extensions of techniques used in the practice of preventive medicine.  Of course, the nature of the risks dealt with in these two disciplines is very different.  Preventive medicine is aimed at reducing risks of poor health, while preventive law is aimed at avoiding legal disputes and liability and at strengthening positive rights.  Despite these differences, may of the means and opportunities for preventing risks are the same in the medical and legal fields.  Hence the close connection between preventive law and preventive medicine.

In their book "Medical Risk Management", Edward P. Richards and Katharine C. Rathbun describe the relationship between preventive medicine and preventive law as follows:

Using the analogy with preventive medicine, preventive law is the legal specialty of preventing the disease of litigation.  Litigation is a serious disease that leaves its victims financially and emotionally weakened and, in some cases, may lead to their economic demise. It is a contagious disease characterized by a latent state with intermittent crises (individual suits). Symptomatic treatment of the crisis phase may lead to a remission, but the disease usually recurs in a more serious form. 

The litigation disease is carried by dissatisfied patients.  Attorneys are necessary in the spread of the disease, but only to the extent that they provide a mechanism for the dissatisfied patient to breach the defenses of the victim. Its virulence is determined by the interaction of environmental and intrinsic risk factors.  The disease cannot be cured, but it can be controlled by carefully monitored therapy and regular checkups.

Origins of Preventive Law

Louis M. Brown, whose insights provide the foundation for today's preventive law methods, has described the origins of this field as follows:


The law that you see and read in the media concerns conflicts and court trials.  Preventive law is the "other side of the law."  And what is that other side?

A personal story illustrates.  I first practiced law in a small office in Los Angeles.  A client consulted me concerning a lease he was about to sign as a tenant.  Should he sign the lease? was the question he put to me. In law school I studied about litigation, the court process, and the legal rights and duties when a case was litigated.  Advising about a new transaction had no direct connection with litigation.  Although I did not yet appreciate the full importance of the general subject, this "other side" of the law began to concern me.

I also had occasion to observe that people got into legal trouble unnecessarily. They just did not realize the legal ramifications of what they were doing. I didn't blame them.  I began, in my way, to blame the profession.  We never really educated or informed people about what I later called THE RULES OF LEGAL HEALTH.   Nor did we help people identify the warning signals of situations that might lead to legal trouble.

So, the concept of PREVENTIVE LAW was started.  That is the title of my first book, published in 1950.  It was an effort to help people stay within the bounds of law (i.e. minimize the risk of legal trouble); and take advantage of legal opportunities (i.e. maximize the legal benefits).  The field of Preventive Law was carved out of the entire scope of law and law practice.  The client/lawyer relation differs.  In the courtroom the lawyer is in charge.  In preventive law practice the lawyer and client are more nearly on an equal footing.

When a new field is developed, one begins to get ideas that might not otherwise arise. This was indeed the inspiration for the founding in 1986 of the National Center for Preventive Law.

This journey has, I believe, begun. It is the adventure into the other side of the law -- the side that gets little public exposure but affects all of us almost all the time.  We read stories of problems that get into the court system.   But most of what we do, most transactions, most of our lives are within successful boundaries of the law.  Yet we don't tell the story of those successes.  For example, there are far more successful and creatively arranged wills and estate plans, far more corporations and businesses that are legally sound, than we ever hear about.   There are laws and lawyers behind every corporate merger and acquisition.   There is law in every real estate transaction.  Every business starts and continues in a legally acceptable form.  And most of these are untold stories of legal success. 

Finally, a few predictions: Come the 21st Century we will, for Preventive Law purposes, see:

Legal status reports for businesses, so that periodically a business will know its legal condition -- much like we now have financial reports that tell about its financial condition.

Routine procedures for the "legal checkup" of individuals designed to help people keep legally healthy and improve the quality of life.

A primary care lawyer available for each person, or family.

Lawyering schools as well as law schools.

Rules of Legal Health that we will teach, just as we now teach hygiene and first aid.

Louis M. Brown
June 1, 1995

A Note About Louis M. Brown

Louis M. Brown (1990-1996) was internationally recognized as the "Father of Preventive Law."  He dedicated much of his distinguished professional career to the development of preventive law.  His pivotal book "Manual of Preventive Law," first published in 1950, is still widely referenced as the first significant treatise on the subject.  His most recent book, co-authored with Anne O. Kandel, is "The Legal Audit: Corporate Internal Investigation" (Clark Boardman Callaghan 1994) which describes preventive law methods for corporations and other organizations.  Mr. Brown published more than 200 articles in professional journals, many in the field of preventive law.  Over the years, a number of awards were bestowed upon Professor Brown, including the Pacem in Terris Medal from Manhattan College. 

In addition, several prestigious awards and programs have been named after Mr. Brown in recognition of his seminal work.  The American Bar Association annually presents the "Louis M. Brown Award for Legal Access" for the advancement of alternative delivery mechanisms and improvement of access to legal services for the moderate income and working poor.  The ADR Section of the Los Angeles County Bar has established the annual "Louis M. Brown Conflict Prevention Award".  In addition, in 1994 the International Bar Association adopted and began sponsoring the "Louis M. Brown International Client Counseling Competition," an extension of a law student competition initiated by Mr. Brown through the American Bar Association some 17 years earlier. 

Mr. Brown was a Distinguished Professor Emeritus of the University of Southern California Law School, and Chair Emeritus of the National Center for Preventive Law.  Professor Brown was also Of Counsel to the Los Angeles law firm of Sanders, Barnet, Goldman, Simons & Mosk.   



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