IT’S NEVER TOO LATE FOR PREVENTIVE LAW

            In law school, we base the curriculum on the study of reported court cases.  Invariably, these cases not only went to trial but also went through appeal after appeal.  Studying settled cases gives apprentice lawyers the opportunity to learn from the experience of others (. . . though no one ever seems to tell them that the reported cases took more than a decade to make their ways through the courts and hundreds of thousands of dollars of legal fees to prepare).  The law students’ minds become trained to reason by analogy, to setting rules for today by looking at holdings of similar cases in the past.  We call that process “legal precedent.”

             The legal advice you get in a law office is an extension of this method:  When you tell me your story, I am likely to tell you a story back.  Hopefully, it will be a memorable cautionary tale that points you in the right direction.  What we call legal precedents when we are looking backwards becomes what I call “preventive practice” looking forward.  It allows my clients to avoid bad consequences that have beset other people.

             Preventive law is always forward looking.  And good preventive law practices take more into consideration than moldy old cases . . .  because the today’s problems are freshly made from the evolving business and social environments that technology cultivates. The practice of preventive law keeps the mind nimble.  Nostalgia will only lock us down into an untrue doomsday analyses.

             As I was going through my bout with cancer, I sometimes heard other cancer survivors speak about feelings of guilt and pain because they believed they had somehow “caused” their illness. These bad feelings weakened their confidence to take action steps forward with hope and courage. 

             Good health practices are even more important while going through treatment and recovery.  Likewise with legal and financial problems.  The most important time for good preventive legal practice is when the business is in trouble, the family is quarreling, the economy is unpredictable. What happens when you find yourself beset with one of the problems you were trying to avoid?  Maybe you made a Plan B that actually works.  But after Plan B fails, most of us are thrown back on our inner resources.  We look for the support of family and friends and other people we trust.  If we have not developed a trusting relationship with a legal professional, we are too likely to take legal advice from family and friends (who got their legal advice from family and friends) because in our culture, the legal profession is not trusted. 

             There is a self-fulfilling prophesy in the expectation that lawyers are greedy and uncaring.  People pay for all sorts of schemes for avoiding lawyers rather than seeking out lawyers who are ready and able to help avoid trouble.  Then when trouble is upon them, the hesitators are forced to pay larger up-front legal retainers and bear greater total legal fees than their more forethoughtful acquaintances.          

            Making decisions on a battlefield is a very different matter than charting out a strategy with chalk and pencil.  Instinctual flight or fright responses cloud the mind.  In a recent essay, I explored the newly defined female instinctual response to “tend and befriend” in the face of danger. It may work better in some situations.  But all instinctual responses are merely action initiators. Whether or not your own instinctual impulse leads you to safety is still a matter of making sensible choices as you traverse an unfamiliar landscape as the battle rages.

             If your habit is to rise to the high ground, you may climb into an ambush.

            If your penchant is for scholarship, you may waste way too much time studying the problem.

            If you tend to follow a strong leader, your fate is in his/her hands.

            If you habitually run from trouble you may end up isolated and alone.

            As a result of surviving cancer and other traumas, I bring to my legal career some lived experience of being in harm’s way.  I understand that a “preventive practice” is not an all-or-nothing proposition.  The best laid plans do not guarantee good health, business success, family harmony, personal comfort or career satisfaction. Ultimate success lies in staying on track and weathering many storms. 

             My preventive practices aim to provide the tools for dealing with what actually arises.  Preventive Practice is not a one-time purchase.  Preventive practice is based on developing relationships -- what the hometown lawyers in my native Iowa built their reputations on.  Clients came to Main Street law offices not because they had taken down a number from a billboard, but because they knew the attorney and his or her values.  Perhaps they had spent a few sleepless nights and they needed to know the answer to just one question that troubled them.  Under those circumstances, they had not already decided to sue their bothersome neighbors, but they wanted to explore a resolution to their neighborhood disputes.  Business owners who were having trouble with previously good customers, suppliers or employees needed to talk over “whether to fish or cut bait.” Clients appreciated being able to call up or stop by for a bit of advice.

         I have two beloved Norman Rockwell prints in my home.  They give me a feeling of nostalgia.  But I must admit that the small-town life I lived in Iowa, Wisconsin and New Hampshire was far more challenging and complex than the scenes depicted there.  Nevertheless, the America of most of our dreams includes a family doctor, a skilled mechanic and a Main Street lawyer.

            I am entering what I believe will be the final decade of my legal career and I have decided that I must take some bold and affirmative steps toward realizing my own vision of being a trusted advisor to successful businesses and thriving families, as well as leaving a legacy to a younger generation of attorneys.  Keep an eye on this column to learn about my plans.