Origins of Proactive Law: Preventive Law
Preventive Legal Care
Proactive law provides tools and techniques for the early detection and prevention of potential problems, but goes beyond these. If problems do arise, the approach offers mechanisms to resolve them quickly, before they develop into disputes. Still the focus is not just on preventing problems or “legal ill-health”. The goal is to promote “legal well-being”. In contracting, this calls for business-friendly contracts that work as managerial instruments, helping the parties achieve the objectives of their collaboration and succeed together.
Traditionally, the steps in providing legal care have resembled those of medical care: diagnosis, treatment, and referral – all steps that happen after someone has a problem. Care has been corrective and reactive. Many contract forms and templates are crafted with disputes and litigation in mind, forcing contract negotiators to spend much of their time preparing for failure. In IACCM’s surveys, year after year, limitation of liability and indemnification have retained their top position in the most negotiated contract terms. Instead of the desired protection, this focus may actually lead to lost opportunity, value erosion, and conflict. Time and money are being spent on issues that should be at the bottom rather than at the top of negotiators’ agenda.
“An ounce of prevention…” is true even when it comes to legal care. We need to move away from the traditional reactive model and an over-focus on negative things. More emphasis must be put on understanding and enhancing the drivers of success.
The Father of Preventive Law
In the context of practicing law, the idea of prevention was first introduced by Louis M. Brown, a law professor and legal practitioner known as the Father of Preventive Law. In an effort to help people minimize the risk of legal trouble and maximize legal benefits, he published the treatise Preventive Law in 1950, followed by numerous other books and articles on the topic. The approach has similarities with preventive medicine, a branch of medical science dealing with methods of preventing the occurrence of disease – here, the “disease” of legal trouble, disputes, and litigation.
The National Center for Preventive Law (NCPL) acts as a clearinghouse for information and as a network for those interested in the theory of preventive law or how it applies to particular areas of practice. The NCPL was founded by Louis M. Brown and is hosted by California Western School of Law, San Diego, CA. The NCPL website offers a general introduction to preventive law and a wealth of information related to the proactive prevention of legal problems.
An introduction to preventive law basics and applications is provided by Professor Richard S. Gruner, Whittier Law School. The Syllabus is divided into three parts: I Preventive Law Basics, II Preventive Law Applied – Some Examples, and III Developing Future Preventive Law Applications.
Success in international trade requires a basic understanding of the underlying laws and default rules. The contracting team must be contractually literate. It may be just as important to notice things that are not in the contract, the “invisible” terms, as it is to understand the terms that have been specified. Helena Haapio discusses Contractual Literacy in her articles “Invisible Terms in International Contracts and What to Do About Them” published in the July 2004 issue of Contract Management, and “Invisible Terms & Creative Silence: What You Don’t See Can Help or Hurt You” published in the September 2009 issue of Contract Management.