PROACTIVE LAW

A new perspective on the practice of law

Prof. Eric vd Luytgaarden

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"It usually costs less to avoid getting into to trouble than to pay (financially
and emotionally) for getting out of trouble." (Prof. Louis M. Brown paraphrased)
     
In curative law, it is essential for the lawyer to predict what a court will do. In proactive law, is essential to predict what people do. (Prof. Ed Dauer paraphrased)
 
Louis Brown, a lawyer and professor, started a new movement in the 1950´s in the United States that was called ´Preventive Law´. This movement was continued and further developed by Ed Dauer at the Denver Law School. To this day, it is a movement that is very active in education and legal practice in the United States. Until recently, there was little interest in Preventive Law in Europe. Law was practiced along rather traditional/reactive lines. This changed in the 1990´s when the term ´Proactive Law´ came into use in Scandinavia. I will briefly explain what is understood by the two concepts.

Preventive law focuses, in addition to the actual legal practice, on changing lawyers' methods in:
  • managing conflicts and averting legal action;

  • minimizing the client's problems by risk management;

  • using multidisciplinary skills and competencies to minimize tangible and intangible loss;

  • using legal aid and assistance as client care.

In addition to the above, Proactive Law focuses extra on:
  • the balance in legal aid between law and the client's wish(es);
  • reaching the preset goal by using means other than just legal ones;
  • eliminating causes of recurring problems in order to prevent future conflicts;
  • shared care and team work;
  • legal self help, to enable the client to help himself as much as possible.

Proactive law is a new way of dealing with clients and law. It is a paradigm shift in the approach to law. It combines legal knowledge and skills with views from organisational sciences and psychology, enabling both the client and the lawyer not to let themselves become dissociated from the case as human beings. By using proactive skills the lawyer can give the client better support and more adequate assistance, and the client will feel more involved as a human being in his own case.
Traditionally, lawyers see their role as defending the client's interest when the latter's problems have reached their peak. The new way of viewing this role, the proactive one, is that the lawyer becomes a designer of the client's work and life processes, meaning that instead of being brought in after things have gone wrong, he cooperates with the client much earlier in the process. A lot of juridicalization will prove to be superfluous: prevention is better than cure.
You will find references to literature here and there on this website. By coaching and by giving lectures and workshops I propagate the new perspective on the practice of law (see activities). My new book ´Different Lawyers´, on changing legal education, is due to appear shortly with Boom Juridische Uitgeverij (legal publishers). Lawyers can be reactive and responsive, but the new developments are focused on proactivity.