PREVENTIVE LAW FOR MULTI-DIMENSIONAL LAWYERS
By Thomas D. Barton (1)
What does it mean to think "preventively" about problems rather than to think "solutionally?" What structures or practices within organizations or personal relationships foster thinking that is preventive rather than solutional? Developing systematic answers to these questions points the way toward applying preventive law to virtually any area of law, and toward describing an important expanded role for lawyers as Designers.
For too long the procedures of the legal system and the self-identification of lawyers have been reactively oriented to the past: the focus is on what has happened and who is to blame. Legal procedures are devoted to reconstructing historical events, building through the adversary process a sort of videotape of the facts as they occurred. Once the videotape is constructed, it can be replayed though filters of legal rules so that legal violations and the wrongful perpetrators are clearly revealed.
Learning to think preventively will redirect lawyers, and perhaps eventually some structures of the legal system itself, from a traditional rewind mentality toward a preventive fast forward mentality. Lawyers can and should become proactively oriented toward better futures for their clients, their communities, and themselves. That is, in practicing preventively clients will be better and more efficiently served. Further, however, the community at large may benefit from a more expansive legal discourse than the current preoccupation with rights, liabilities, and transfer payments to compensate violations. The law may better address goals as well as rules, and stress the need for people to find common ground rather than just differences of opinion. Finally, in becoming Designers lawyers may experience stronger job satisfaction for having helped their clients and others find better ways of living.
The Louis M. Brown Program in Preventive Law and the National Center for Preventive Law, both housed at the California Western School of Law in San Diego, are working at broadening the idea of Preventive Lw. The attitudes and skills of preventive lawyers are unfolding as one important dimension-the lawyer as Designer-of a well-rounded, flexible, multi- dimensional practitioner who is also capable of acting as either Fighter or Problem Solver.
The Designer works proactively with clients to identify potential legal trouble-spots and design interventions that prevent those risks from occurring. Further, however, the multi-dimensional lawyer is a Problem Solver for those problems that do erupt, notwithstanding the best preventive efforts. The Problem Solver listens actively to understand a problem in its business, relational, or organizational context and attempts to prompt comprehensive, enduring resolution of the problem by the parties themselves. Failing that, or where justice concerns otherwise seem to warrant it, the multi-dimensional lawyer can become the Fighter who initiates judicial resolution of the problem. All three dimensions of lawyering are important.
The key to a lawyer providing optimal service for a client, in sum, is for the lawyer to be multi-skilled or to be part of a team of professionals that will prevent whatever problems can be prevented, approach imaginatively and cooperatively those problems that do arise, but always be willing to litigate traditionally where more accommodative solutions are infeasible or inappropriate. The multi-dimensional lawyer must be a sensitive listener, an open-minded yet skeptical and realistic counselor, a person with the creative vision to understand problematic environments and make suggestions for their restructuring, and an advocate with the courage and passion to advance a client's interests in whatever forum is required.
This article focuses on the Designer role of the multi-dimensional lawyer. The Designer is distinguished by the skills to think and act preventively rather than solutionally. Thinking solutionally is characterized by two tendencies: first, the tendency to wait until a problem has visibly erupted before identifying it as a "problem." Second, the solutional thinker tends strongly to define "solutions" narrowly, as supplying resources to meet some need. Thinking preventively resists both of those tendencies by expanding the definitions of both problems and solutions.
First, the Designer realizes that "problems" includes more than historical violations of rights or current unmet human needs. For a preventive lawyer the idea of a problem includes both misguided perceptions about needs, and also risks that have no as-yet visible symptoms. Second, thinking preventively requires understanding solutions in more nuanced ways. Some problems can be resolved without supplying resources to meet a need. Yet other problems will not be durably resolved even if resources are supplied to meet current needs.
The differences between thinking solutionally rather than preventively can be summarized as follows: solutional thinking is reactive and resource-based-representative of the rewind mentality. Preventive thinking is proactive and systems based--a fast forward mentality. Solutional thinking focuses on gathering up the resources to meet articulated needs, or reaching agreement on how limited resources should be allocated among competing needs. Preventive thinking instead explicitly addresses the risks and perceptions of human needs, and analyzes how such needs emerge within a broader business, organizational, or relational context.
Talking preventively needs requires taking the following steps:
1. Describe the particular elements that comprise the broader context of this problem.
2. Analyze the dynamics, or patterns of interaction, among these elements. That is, attempt to understand how needs--perceived or real-emerge from tensions between individuals and their social, business, organizational, or family environments. Do this by looking at what gives each element of this problem dynamic its peculiar importance. Only by understanding the system that gives rise to the needs can the risks its occurrence be assessed, and effective preventive interventions be devised.
3. Imagine all the possible ways that the dynamic could be broken or slowed.
To expand upon this conceptual framework, suppose that you are in the position of advising on policies to prevent a society-wide problem. How should you proceed?
1. Focusing on Risks
Forecasting risks more comprehensively and accurately requires understanding the dynamics of problem creation. That can happen only if one fully understands the setting of a potential problem. A lawyer should always attempt to understand as broadly and deeply as possible the context in which a client operates: the client's business, or family, or organization, or culture. Where are there conflicting goals? Where are there scarce resources? Where might the physical or regulatory environment be subject to unpredictable change? Where are there people in contention for power? Environments create challenges and threats for people that translate into risks for unmet needs.
2. Focusing on Perceptions
Attempting to analyze, and perhaps to alter, the social perceptions of needs smacks of manipulation or of just wishing away a problem with positive thinking. "Spinning" a problem may well be shallow and cynical. Yet this is not always true. Sometimes, social perception of needs distorts reality. In those instances, changing social perceptions eliminates the problem in a way that is not deceitful or intellectually dishonest. As an example, imagine that the problem is an exaggerated perception of crime being committed by people whose skin color or cultures differs from one's own. This social problem is the perception of an unmet need of protection against crime committed by members of minority groups. In a democratic society, the perception of this unmet need will be translated into a variety of actions being taken to stem criminality by the minority groups. Where the perception is exaggerated and thus unwarranted, however, such actions are unjust and socially very costly.
Taking steps to alter these inaccurate perceptions--for example, by hosting cross-cultural sensitivity training or having diverse populations work together toward common goals on a mutual problem, will have the effect of preventing an exaggerated need of protection from being perceived in the first place. Hence, the problem-as expansively but helpfully conceived by the Designer lawyer--is prevented.
3. Focusing on the Emergence of Needs
The final preventive approach is to focus on the emergence of real needs. If needs can be reduced, then any problems will have lesser incidence or severity. Once the elements of the problem dynamic are identified, the robustness of each element can be assessed in the need-creating dynamic. Once that is done, one can imagine all the possible ways in which the dynamic can be broken or slowed. Importantly, many ways of breaking the problem dynamic do not involve a significant increase or reallocation of resources. Consider an example: ensuring adequate nursing home availability to an aging population.
In discussing this problem preventively, I would first state the problem as immediate rather than merely some future resource need. We have already a consciousness of a looming social difficulty in caring adequately for elders-that many people will come to a point where they cannot live alone, but that assistance for them will be unavailable or inadequate. This risk already has some perceived manifestations. We read of nursing homes, for example, that are inattentive, dishonest, or impoverishing. Significantly, however, even if no manifestations of the risk were yet visible, the preventive lawyer would consider a problem-in the form of the risk itself or its perception-to exist. (2)
Second, I would notice that talking about meeting the need for nursing home care through government insurance programs, or widespread nursing home insurance as an employment benefit, or more competition among private nursing home facilities is thinking solutionally. By phrasing the issue in this way, the problem is defined exclusively as the shortage of some resource. The solution is imagined only as increasing that resource. To be sure, solutional thinking may lead to some positive steps. Sometimes there really are resource shortages. But if one only thinks solutionally, the danger is that more inventive, systematic, preventive approaches will never be considered.
The preventive approach to this problem would do the following:
1. Describe the particular elements that comprise the broader context of this problem.
Here, those elements are:
a. a vulnerable older person;
b. a demanding living environment, usually in the person's home; and
c. the absence of other people (this is the "cannot live alone" aspect of the problem).
2. Analyze the dynamics, or patterns of interaction, among these elements. Do this by analyzing what gives each element of this problem dynamic its peculiar importance.
a. Older people are made vulnerable by the vicissitudes of age: reduced mobility, strength, cognition, memory, and physical balance. These reduced capacities interact with the home environment because, although we do not often think about it, the typical home environment makes various demands on humans. If they are not capable of meeting those demands, then the person cannot comfortably or safely live in the house.
b. Houses make demands on people. First, there is the issue of access. Staircases must be climbed to reach bedrooms; bathtubs must be entered that are slippery. With reduced mobility and balance, this becomes a challenging environment on older people. Houses also make demands on people to manipulate objects: appliances, faucets, jar-lids, valves), etc. Reduced strength or coordination makes such manipulation problematic. Houses also require a certain amount of discernment of information that reduced cognition or memory makes difficult. One must understand and pay household bills, for example, and be capable of reading and manipulating thermostat and stove settings. Finally, homes demand repairs that require strength, experience, or money.
c. The absence of another person, or "help," comes up in doing commonplace tasks like those considered above, that are often done cooperatively within households: cooking, grocery shopping, cleaning, paying bills, lawn care); in everyday friendship and conversation; in summoning help in case of an emergency; and in giving actual emergency care.
3. Imagine all the possible ways that the problem dynamic can be broken or slowed.
One could first think about any interventions about perceptions. Are there stereotypes at work here concerning older people and their capabilities? Or, similarly, is there "learned helplessness" on the part of older people?
If so, educational programs in which older people model their real potential for independent living could help to alter those perceptions, and thus prevent the "need" from arising. Relatives of the older person, who often are the decision-makers about nursing home care, could be shown the full range of possible measures to permit the elderly to stay in their homes.
Finally, consider each aspect of the problem dynamic--the vulnerable person, the demanding environment, and the lack of another person's physical presence--and brainstorm possible interventions to reduce the risk of their pathological interaction.
Generally speaking, the problem dynamic of expensive nursing home care could be prevented by making the vulnerable person more capable; or making the environment less demanding; or bringing in people (or a substitute for an actual person) to help perform the functions that make the absence of people problematic. Here are just a few examples of possible interventions that could help break this pathological problem dynamic. Note that none of the suggestions are traditional "resource" solutions that would simply build more nursing homes.
a. Making People More Capable
A person can be made more capable along the dimensions of mobility, strength, cognition, memory, and physical balance through a host of means: walking aids, developing light, simple tools for various household tasks, designing exercise equipment specifically for older people, playing games frequently, writing journals, and using bio-feedback devices for helping balance.
b. Making the Home Less Demanding
A home can be made less demanding along the dimensions of access, manipulation, discernment of information and repairs by installing ramps, seat-elevators, hand grabs; making dials, buttons, and display information larger; making appliances responsive to voice commands; and appliance repair insurance.
c. Supplying "Others" into a Home
Supplying "another" for help can take different forms, not all of which are human. It depends on the particular task. Some help can be given through technology, for example by automated direct-payment of bills through banks or through monitoring bracelets that wirelessly broadcast vital sign information to health care providers. Other help is utterly low-tech, requiring simple kindness and a bit of organization: neighbors could be asked to look in periodically on the elderly person. For most people, being helpful in this way is rewarding in itself. People simply need to be asked, and instructed on what to do. Neighborhood help has a spillover effect beyond safety in summoning emergency care and helping to accomplish necessary household tasks. The human presence addresses the need for human companionship and friendship. Therapy pets can also be most helpful along this dimension. More ambitiously, small groups of elders can be brought together at one another's houses on a daily basis, through pooled transportation scheme, home delivery of groceries can be arranged through internet companies, and many regions operate charitable meals on wheels programs.
To engage effectively in identifying, understanding, and rearranging the elements of a problem dynamic, the lawyer should become fully acquainted with the client's broader context, or environment: social, business, family, or organizational. Only by thoroughly understanding how the elements currently work--toward what ends and for what reasons--can the lawyer be an effective architect of a smoother, more trouble-free environment.
Coming to know fine details of the problem context may be time-consuming, but it will likely have additional pay-offs beyond problem prevention: a richer, more respectful relationship between lawyer and client. It is advisable to explain to the client the long term reasons for inquiring deeply about matters that may at first blush seem peripheral to a client's purpose in contacting the lawyer. Once explained, however, most clients will be pleased that the preventive lawyer is approaching the client more personally and the problems more thoroughly. The client will be brought in to the lawyering process more effectively, as a co-architect of the design to reshape the environment.
Finally, the lawyering process of the Designer is more democratic. Pushing over the traditional hierarchical, vertical relationship between lawyer and client and remaking it into something more participatory and horizontal offers the potential for a richer professional experience. Further, making lawyer/client interactions more horizontal supplies an important model for new environments that the client can create outside of the lawyer's office. Suggesting to clients that they implement more interactive, democratic structures in their organizations and relationships can generally be of great assistance in facilitating preventive lawyering. Horizontal structures reduce power disparities, supply multiple alternative forms and channels of communications among constitutive parts, promote decentralized, participatory decision making, and offer informal avenues for resolving disputes.
The advantage to Designers of horizontal structures being adopted by their clients is that such structures prompt early identification of risks that as yet are completely prospective. Problems that arise within horizontal structures, in other words, tend to be identified earlier in their life cycle. Horizontal structures are also more malleable, so that interventions designed to break up pathological dynamics can be more effective. This is because people who are organized horizontally become accustomed to making the small, mutual adjustments to one another that accommodate to differences within a broader enterprise, be that enterprise a family or a business association.
In conclusion, preventive law is thriving and being systematized within other contemporary movements in legal practice: the proliferation of alternative dispute resolution structures and efforts to find legal outcomes that are more satisfying for both client and lawyer. The partnership of preventive lawyering with these other efforts is worthy, and helps to describe comprehensively a multi-dimensional lawyer who has both the flexibility and skills to thrive in a period of accelerating social and economic change. Even as these efforts become more refined, however, readers of this Reporter will constantly bear in mind, and be comforted, that the best problem is the one that never happens.
1. Professor of Law, California Western School of Law and Director, Louis M. Brown Program in Preventive Law. Professor Barton also coordinates the National Center for Preventive Law which is housed at California Western School of Law. The author wishes to acknowledge the most helpful conceptual and stylistic contributions of James M. Cooper, Assistant Dean of California Western School of Law and Executive Director of the McGill Center for Creative Problem Solving.
2. I am grateful to Professor Edward A. Dauer, in personal communications, for expanding my definition of problems to include risks that do not yet have visible manifestations.