Preventive Law - The Next Generation
by Harold A. Brown
I am the son of Preventive Law. My father was Louis M. Brown, widely regarded as the
father of Preventive Law. I am his progeny -- not his only son, but the only one who became a
lawyer. I saw father attack the challenges of Preventive Law the same way, and occasionally
with the same breath, as the challenges of fatherhood.
When I was growing up, we had in a back hallway a large mock-up, about five feet by
two and a half feet, of a Time Magazine cover, with a picture of my father, proclaiming him
Times' "Man of the Year" with his picture and the caption the "Father of Preventive Law". It
wasn't real, of course. It was a gift from his law firm, Irell and Manella, at his retirement party.
I was probably eight or so. The Time Magazine cover stayed in our hallway for years, until
people began to believe that it was a real cover. The cover may not have been real, but the
Dad practiced law but he had always liked teaching. In the early 60s, he transitioned
from being a full-time lawyer, first to a part-time, and later to a full-time professor. He was
driven by a great desire to share his vision. But he didn't fit well in academia. He was a
visionary, but not an intellectual, and almost no academics saw, let alone shared, his vision. He
could explain the concept of Preventive Law to his colleagues, but few were interested. Fewer
still had practiced law or had any notion of the concepts he was trying to impart. He was drawn
more to bar journals than law reviews. He was full of ideas, and short on footnotes, or precedent
of any nature. He was in a land with no natural allies. He was a man of common sense in a land
of tenure, and precedent and footnotes.
It didn't help that Dad had no time for idle thought. He needed a direct link between an
idea and how it benefitted people. He had no patience for study for studies' sake -- except when
he told me to do my homework. Nor did he take joy in speculating on the outcome of elections,
or ball games. He wasn't interested in gambling. He was interested in figuring the odds only if
doing so led him to a wise action. To him, his colleagues' analysis of cases and applicable law
was only of intermittent practical application, without lawyers helping people use that
knowledge before there was a dispute. He saw that we get into disputes infrequently, and when
we do they are very costly. We avoid them constantly, and any additional advice or knowledge
on how to do so (without giving up an advantage in the process) is worthy of pursuit and study at
least equal to, if not more than, judicial precedent and analysis.
I remember him describing the frustration around the dinner table. People -- and by
people he generally meant any professor or lawyer he was trying to convince -- either felt
Preventive Law was obvious or that it was nothing. Sometimes both! They would object that it
wasn't something which could be studied, or learned. To them, a good Preventive Lawyer, if
one existed, was a natural.
Even if it could be studied, his academic colleagues simply weren't interested, since, in
general, they were not at all interested in the practice of transactional law. Courses were in
substantive subjects: tax, securities, anti-trust -- but not in the practice of law. Teaching
materials were based upon cases and precedent. (This was long before the advent of clinical
programs which, when they started, emphasized litigation and not transactional lawyering.) To
this desert, he brought concepts in studying and improving a skill that was neither taught nor
practiced by his colleagues. To do so, he always had to create his own materials.
In this environment, I grew to become a lawyer. We had long discussions when I was in
law school about what practicing lawyers do; on when they do it poorly and when they do it
well. He would cross-examine me, pressing me always to describe the client's real problem, not
just the legal problem; and forcing me to examine all possible solutions. The solution could be
to file a lawsuit, or it could be to apply for a government grant or build a fence. In his poetry,
"Good fences not only can make good neighbors, but good lawyers".
He beat a simple tune. "In litigation," he often said, "It is important to predict what
courts will do. In Preventive Law, it is important to predict what people will do." The latter is
much harder to learn, of course, as there are no reliable precedents. Too often law students (and
lawyers) don't even know that it is important to learn.
Part and parcel to this, Dad taught that a client's emotional response to a problem was at
least as important as any legal analysis. If people feel well treated, they are unlikely to look for
legal remedies they may not know they have, and they are less likely to pursue them even if they
know about them. Therefore, a transactional lawyer must always deal with people's
expectations, and a good transactional lawyer must not just deal with his client's expectations,
but help to create reasonable expectations, and be sensitive to (and where possible guide) the
expectations of all other parties.
He believed strongly that lawyers help people, all people, and worked hard to expand the
availability of legal services to those who might not otherwise have access to lawyers. He was
one of the earliest proponents, if not the inventor, of legal cost insurance; he was a promoter of
the judge advocate's general's programs giving military families access to lawyers; a strong
advocate for the unbundling of legal services and a believer and supporter of publication and use
of self-help manuals for those who could not afford a lawyer. He fought for lawyers who ran
"clinics" or law offices directed at the middle class. This was more than unfashionable. At the
time it was considered unethical for lawyers to advertise or practice under a false name by
describing themselves as a "clinic".
We wrote two articles together. He modeled his style after Hemingway. He taught
himself to write, and to write simply. He didn't want to impress; just to be understood. At the
time, I thought I did all the work and he contributed a few simple ideas. I shared credit because
otherwise they would not have been published. In retrospect, of course, I understand that that
was Dad's beauty, and frustration. He was forever contributing a few simple ideas. They were
the work; the rest was grammar.
His ideas were always focused on directly helping people, or in teaching students how to
directly help people. In the academic world, they were rarely appropriate subjects for analysis.
In fact, they often defied analysis. In the real world, they were brilliant extensions of the legal
profession, and the legal craft.
Here were a few simple ideas. Checklists. Legal Check-ups. A professional
paraprofessional program, one of the first in the country, which he helped start at USC. Legal
Autopsy. The client counseling competition, originally called the mock law office competition.
Law Office Classrooms. Pre-marital legal counseling -- and not just for the rich. Legal cost
insurance. Clinical, transactional, legal programs in law schools. Teaching junior high and high
school students law using things important to them, such as the purchase of a car.
He wrote articles and collaborated with Ed Dauer for over twenty years. Ed added a
more traditionally academic view to Preventive Law problems and questions, and believed,
perhaps more strongly even than Dad, that Preventive Law could be studied with traditional
academic techniques, and therefore communicated more easily to educators. I am delighted that
Ed is here today to share his wisdom, and to attest that over time that slowly but surely the ideas, and the concepts, are catching on. This program is but a small step
in that direction, but fortunately it is one of many. I know that Dad would be pleased to see
Preventive Law worthy of our time and attention and study.