My Life as a Preventive Lawyer
Kenneth Ross, Attorney at Law
In 1976, I became an in-house lawyer at Westinghouse Electric and
immediately was immersed in legal activities that required me to be a preventive
lawyer. I didn't realize that was what I was doing and certainly didn't know how
to think preventively.
Sometime after that, I met Lou Brown and Ed Dauer. Unfortunately, I can't
remember the exact date but it must have been in the early 1980s. I remember
specifically having a dialogue with Lou Brown over the question of whether
litigators can be good prevention lawyers.
At that time I was mostly managing litigation first for Westinghouse
Electric and then Emerson Electric and not doing much prevention. Also, I was
involved in the ABA Section of Litigation. Therefore, my perspective was that
litigators, inside or outside of a corporation, could provide good preventive advice.
Lou disagreed and we had several conversations and letters back and forth on the
Even before I met Lou and Ed, I had heard the term "product liability
prevention" in connection with engineering seminars in New Jersey. In 1977, I
founded and co-chaired a seminar for the Practising Law Institute on the
prevention and defense of product liability. I was not aware of any product
liability lawyers who claimed to do prevention as I was doing it, so I guess I was
somewhat of a pioneer, at least in that substantive area.
The reality is that many lawyers, mostly in-house, were practicing
preventive law at that time but didn't have a name for it and, more importantly,
didn't understand the dynamics and processes of practicing preventively.
Lou Brown and Ed Dauer provided myself and other lawyers who gave
preventive advice an organized way to think and to act as we tried to help our
clients minimize legal risks. They were my gurus, my shining lights on a hill.
They gave me comfort in knowing that there were others much smarter than me
who were helping to develop a practice area that was rigorous, analytical, and
beneficial for our clients.
For the next decade, I had the privilege of working with Lou and Ed on the
Board of the National Center for Preventive Law and other activities. I thoroughly
enjoyed these activities and regret that I was so far from Denver and Los Angeles
and not able to participate even more.
Over the years, I learned that many lawyers don't like to practice preventive
law, especially the proactive aspect of it, because it is too speculative. We learn in
law school how to analyze the law after an event has taken place. We have an
event or a transaction, a place, a time, and known parties. The proactive part of
preventive lawyering usually means that the event has not taken place and
therefore we have an unknown time, place and parties. How do you practice law
given the lack of facts?
The speculative nature of preventive law was the part that always intrigued
me. Reacting to problems is a necessary and helpful part of preventive lawyering.
Trying to prevent future legal problems after a problem has occurred is, of course,
very necessary. Trying to prevent future legal problems when none have yet
occurred is harder and more challenging.
Predicting future legal problems involves legal risk assessment and is a key
ingredient to successfully practicing preventive law and being helpful to your
clients. Yet how do you assess the probability of something happening that never
has happened before? You can't just assume the "worst case scenario." If you
did, your client would have to do many things that probably aren't necessary.
So, what do you do? This is the hard part of preventive lawyering. We
didn't learn it in law school and law professors don't generally teach this.
Unfortunately, they don't even understand the concept and base all of their
teaching on analyzing cases, which assumes something has happened.
In 1991, I started teaching product liability at a law school in Minnesota. I
have taught at William Mitchell Law School and the University of Minnesota Law
School. First, I was going to teach a course on preventive law but the Dean didn't
think that students would sign up for such an amorphous sounding course. So,
instead, we created a product liability course that focused on preventive law
The students hear about the role of a lawyer in understanding the relevant
law, helping the client analyze risk, and proposing risk minimization activities.
They learn about the benefits of being proactive and how to sell the concept to
More recently, I took the preventive law concept and created a course at
William Mitchell called Business Ethics and Corporate Decision-Making. In this
course, we discuss the relationship of business ethics to corporate compliance to
preventive law. I argue that they are intertwined in the process of helping
corporate clients comply with the law, minimize legal problems, and comply with
the ethical and moral codes of the company. I again argue for an activist role for a
lawyer to be proactive, from a legal and ethical standpoint.
I have been a preventive lawyer for 24 of my 27 years of practice. I have
devoted my career to it. It has made my practice interesting and challenging. If I
had continued with the litigation career that I started out of law school, I am sure I
would have burned out long ago. Preventive lawyering has been wildly enjoyable,
less stressful, less adversarial, and much more beneficial for my clients and
I am thrilled with the launching of the National Center for Preventive Law
and the Louis M. Brown Program in Preventive Law at California Western School
of Law. I hope to be able to participate and contribute to the success of this
program. Keeping Lou's dream alive is very important to all of us who many
years ago were hooked by the simple concept that lawyers are supposed to help
clients prevent problems and not just help clean up after they occur.