What law school ought to be.



The Matter with Lawyers
Why is it that people love to hate lawyers?
Just what is the matter?


by David Rowley


Three Definitions

1. activity \ the quality or state of being active

Processionary caterpillars blindly follow one another. Naturalist John Henry Fabre arranged several in a complete circle around the rim of a flowerpot, nose to tail. He put food in the center of the pot, and the procession began. For seven days and nights they marched, finally dropping dead of starvation and exhaustion - with an abundance of food only inches away. For an entire week, the caterpillars were engaged in activity - the quality or state of being active.

2. productivity \ abundance or richness in output

Thomas Edison invented a machine that recorded votes by moving a simple switch. He obtained a patent (his first) and showed the chairman of Congressional Committees how his machine could eliminate the tedious business of marking and counting ballots. The chairman complimented Edison on his ingenuity, but promptly rejected the idea. "Delay in the tabulation of votes is often the only way we have to defeat bad legislation," he said. Edison was stunned, and later said, "Then and there I made a vow that I would never again ed." Edison's efforts exemplify productivity - richness in output.

3. achievement \ successful result brought about by resolve, persistence, or endeavor; attainment of the desired end or aim.

Put a man on the moon. Build a computer chip that makes a billion calculations a second. Decode the DNA molecule. Develop a polio vaccine or invent a cell phone. Earn an Olympic medal, win a promotion or raise a prize-winning rose. Achievement is the progressive realization of a worthy goal - on purpose.

Activity means busy. Productivity means busy with an output. Achievement means busy with an output on purpose.

The Demand: What Do People Want?

What do people value? Activity isn't enough. "Putting in your time" is a universal indictment. Productivity is better. It shows up as products, plans, reports and studies - deliverables. But results are what they really want - increased sales, improved margins, reduced costs, enhanced service. Make a profit. Achieve an objective. Add value.

The Supply: What Do Lawyers Sell?

What do lawyers sell? "Time is a lawyer's stock in trade." As bargained-for exchange, the billable hour reigns supreme. Sometimes lawyers sell fixed price projects, usually characterized by deliverables and an abundance of output. On occasion, a fee arrangement is tied directly to results or the value created.

A Foundation for Prevention

In order of preference, people value achievement, productivity and activity. In order of frequency, lawyers sell time, projects and performance. Preventive law is an unconventional animal that lends itself to unconventional fee arrangements. In almost twenty years of preventive practice, I've never found a one-size-fits-all, boilerplate form. But although each arrangement is different, all are based on three simple concepts:

1. Credibility

2. Accessibility

3. Accountability


"Lawyer" and "liar" are used interchangeably. Deceit, deception and duplicity are widely considered as tools of the legal trade. But business is personal. It's built on relationships. And relationships are built on trust.

Earning trust is step one towards credibility, a condition of effective preventive counsel. Legal issues aren't isolated or labeled. They're part of the warp and woof of the broader fabric of life - dreams, visions, goals and aspirations. Without the wider context, counsel is needlessly limited. Credibility is the key to the big picture.


The law is mysterious to the uninitiated. The language is archaic. The process is arcane. The road to the law office is filled with obstacles both social and economic. Lawyers are often as inaccessible as the law that they practice.

Preventive law seeks to minimize risks. Creative problem solving seeks to maximize available solutions for all stakeholders. Timing is critical to both approaches. Avoiding pitfalls or obstacles requires advance warning - and the sooner the better. Sooner is better than later in problem solving, too, where the passage of time tends to narrow the array of available alternatives.

Good timing depends on accessibility. Availability is important - being where needed, when needed. I maintain a virtual office where the action is, and the ongoing nature of my relationships increases the likelihood of being in the right place at the right time.

But you can't always be there. Accessibility applies not only to the lawyer, but also to the law. Translating complex legal concepts into workable guidelines delivers tangible benefits. First, people better know when to call for professional help. Second, they're armed with basic tools to fend for themselves when they're on their own. And third, translating legalese into plain English - speaking "miles per hour" rather than "furlongs per fortnight" - enhances the counselor's credibility.


While credibility and timing are indispensable to an effective program of prevention, the acid test is performance. Unless it creates real value, no program will endure.

Measuring value is almost always a tricky proposition, but it's especially so in the context of prevention. How much is it worth to avoid a problem? How do you value something that didn't happen? And how do you know if a risk has been managed optimally?

The assessment of value is subjective. Don't confuse what is easily measured with what should be measured. Like beauty, value is ultimately in the eye of the beholder. It's a matter of perception.

The Heart of the Matter

Preventive law is a process of creative thinking, timely planning and purposeful execution to minimize legal risks, maximize legal rights and optimize legal outcomes of transactions (deals), relationships (disputes) and opportunities (problems). Within that context, achievement isn't a matter of time. It's a matter of timing. Productive entrepreneurs create wealth. Predatory entrepreneurs merely reallocate it. Credibility, accessibility and accountability are essential ingredients of an enduring relationship. Any arrangement that fosters trust, facilitates good timing and consistently delivers client perceived value is a good agreement.

Dave Rowley 2000