My Life as a Preventive Lawyer

By

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 subject.

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 clients.

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 hopefully society.

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.