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.

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. ---- the emphasis in preventive law is to manage facts and events in such a manner as to avoid unwanted legal consequences.

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 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.

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.

Source :http://www.cyberinstitute.com/preventivelaw/week1.htm

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