The Case for a National Legal Health Strategy
(reprinted from Preventive Law Reporter, Summer 1993, with permission)
By THOMAS H. GONSER, ESQ., (1) and FORREST S. MOSTEN, ESQ. (2)
The notion that law and legal services can be both perceived and delivered in a preventive context covers an extremely broad spectrum. Elsewhere in these pages we explore how principles of preventive law can provide innovative approaches for law offices, practices and strategies in the public sector.
It seems worthwhile, however, to keep in mind the far broader scope of preventive law. Preventive law approaches in the public sector should properly be seen as a part of a much more comprehensive phenomenon which at long last is beginning to find application in virtually every corner of the legal profession.
It's no secret that our entire methodology for the administration of Justice has been under increasing strain. Staggering volumes of litigation have led to congestion in courthouses at all levels. Even the most deserving civil remedies sometimes must wait for years to achieve resolution in the courts, with the stresses and costs of litigation often rendering even a complete "win" a shallow victory at best.
The criminal justice system has not fared better. The sheer volume of criminal cases, coupled with the alarming recognition of the consequences of inadequate prison capacity, increasingly poses a fundamental challenge to the viability of our criminal justice system. As might be expected, in the absence of a more thoughtful explanation of these ills, it becomes popular to assert that the problem is essentially that of "lawyers." While such charges may serve certain transitory political interests; or even provide a sense of perverse satisfaction to some, they have only tended to delay and obscure our collective vision of the required changes which are now needed.
The impact of claims and litigation is now described as a massive obstacle to our nation's productive capacity and, ultimately, to our ability to be economically competitive in a new global economy. It is interesting to note that with respect to both individual claims and corporate disputes, we have begun to focus more serious attention on alternatives to litigation-"ADR," or alternative dispute resolution.
While ADR itself has qualities which are in part "preventive," it is still predicated on some type of earlier "failure"-i.e., something went wrong that could likely have been avoided through the intervention of timely legal guidance. It is curious that we have been slow to recognize that the same logic that leads us to conclude that ADR is better than litigation, leads to a much more compelling ultimate conclusion. Dispute avoidance is far superior to both.
The context of these continuing challenges to our legal system provides a framework within which we can finally achieve public recognition that our individual citizens, our business entities, our governmental units and even our nation has a "legal health." That quality of legal health is determined in each instance by the type of "legal care" which is available. The ways we deliver legal services and our methodologies for dispensing justice don't merely deserve our attention; they urgently demand our thorough review, reconsideration, and revision. Our present system has been assembled, not designed. It is in too many respects reactive rather than creative. We must recognize this as a situation which we can no longer tolerate in a society grounded in the rule of law.
There is a single. critical element which underlies our current dilemma-the complete absence of a comprehensive national strategy to optimize our legal health. The current "health care crisis" is a painfully obvious analogy which serves to highlight this same fundamental flaw within our legal system.
The costs and availability of health care have become a crisis of such proportion that comparatively new and innovative approaches are now deemed essential. The medical profession, through its national organizations, has for whatever reason not been able to prevent what is now perceived as a national health care crisis. It now finds itself with greatly diminished role in fashioning new plans and programs to create a national strategy and agenda for making health care more accessible and more affordable. It is hardly surprising that much of the dialogue which attends the consideration of these new approaches focuses on prevention.
Just as a national health care strategy has now been found indispensable to the achievement of needed reforms in the delivery of medical services, the case for a national strategy to address our system for the efficient and effective delivery of legal services is equally compelling. The health crisis cannot be resolved without a substantial departure from systems, methods and practices which had grown more by default than by design. New policies and methods must be integrated under a national health care strategy which will address the problems of today and the century to come. The same is true of our system of delivery of legal services.
Efforts at "legal reform," however nobly conceived, have to date provided an ineffective patchwork of unrelated programs and initiatives. These have included such things as proposals for tort reform (which inevitably have become mired in a quagmire of political considerations and special interests); efforts to improve the efficiency of court administration; procedural reforms intended to limit some of the more egregious abusive practices which procedural rules presently invite, and various alternatives to litigation for the resolution of disputes.
These separate and unrelated efforts, each of which addresses a deserving topic, fail entirely to address the one underlying issue which they all have in common: How to prevent disputes from arising in the first place. In the context of the criminal justice system, the focus must logically place far greater emphasis on addressing the complex social and economic issues which have led to the uncurbed proliferation of antisocial behaviors.
Somehow our preoccupation with addressing a litany of seemingly unrelated individual "crises" in our legal environment has precluded our ability to focus on the root causes. We have been treating the symptoms, but overlooking entirely the underlying disease. Unfortunately, it may be argued that the profession itself has not yet demonstrated that it has an effective mechanism which permits it objectively to address the need for an integrated national legal strategy and to propose responsive solutions. Bar organizations, despite their many contributions, are in the final analysis limited by the diverse and sometimes competing interests which they seek to represent. It is likely that any truly innovative effort at developing a national strategy for our legal system will require the collaborative effort of lawyers and a variety of professionals from other disciplines; it should provide for significant participation by a broad range of consumers of legal services as well.
Any effort to define a national agenda for complete reform of our justice system must inevitably be grounded in notions of prevention as the primary objective, with new forms of conciliation to address the consequences which attend the failure of preventive measures. This new legal culture needs to begin with the preparation of our future generations of lawyers.
The case for a national strategy to deliver efficient, effective legal services is compelling.
The predominant focus of legal education is currently on how to fix that which has already gone wrong. Students are taught strategies for treating failures through various judicial processes. There is virtually no study of "successes"-i.e., how clients might have been counseled in such a manner as to achieve their objectives without conflict. Indeed, there is no known information resource which addresses itself to this critical topic and no current appreciation for the need that one be developed. As a consequence, our new lawyers are well schooled in how to diligently defend the interest of their clients in court, but there is insufficient emphasis on counseling clients how to order their affairs so as to achieve their objectives free of the consequences of legal entanglements.
Our "after the fact" emphasis on lawyering and legal services is also fostered in part by the client population itself, whose perception has typically become that lawyers are people to be consulted only as a last resort-after something goes "wrong." Regrettably we lawyers may have inadvertently contributed to this perceptiou by failing fully to recognize the need for greater emphasis on prevention and by clinging tenaciously to the traditional formal processes of dispute resolution.
What precisely is it, then, that we should be doing? We should be forging a new national consensus in the pursuit of a comprehensive national legal strategy. We should be focusing our efforts on how lawyers are trained and on new opportunities for redefining our concept of how legal services are delivered. We should study successful outcomes and learn how they were achieved. We should place greater emphasis on counseling skills and recognize that our earning and practice experiences are far too skewed by an assumption that lawyering is essentially a process of "unscrambling the eggs." We should foster the notion that the highest and best use of legal services is in providing guidance to clients before rather than after the fact. And we should as well reexamine that aspect of our professional culture which views disputes as inherently requiring a "winner/loser" outcome, as opposed to other conciliatory options which seek to adjust differences between parties in a less hostile context.
We must be willing to challenge the way things have been done in the past and to commit to fundamental changes in both the perception and the role of law and lawyers. If such a review can be done on a national scale, it is submitted that prevention and conciliation will provide the fundamental integrating concepts upon which such a national legal strategy can be successfully constructed.
1. Thomas H. Gonser is the senior partner in the consulting firm Thomas H. Gonser & Associates, Friday Harbor, Washington, and former executive vice president of the ABA.
2. Forrest S. Mosten is a certified family law attorney specializing in mediation and ADR systems design, Mr. Mosten is chair of the Dispute Resolution Committee of the Beverly Hills Bar, executive chair of the Louis M. Brown International Client Counseling Competition, and a member of the ABA Standing Committee on Delivery of Legal Services. He specializes in high conflict mediations, coaching clients in a limited scope basis, and is the Founder of Mosten Mediation Centers, with offices throughout the United States (www.MostenMediation.com).