A Moment's Hesitation- the source of preventive law (India) *

An established senior counsel told me the other evening that when clients go to a lawyer in India, most are encouraged to litigate. Advice which is commonly followed by the lawyers’ claim of 70% success just in case his/her client has a moment’s hesitation. But to what end?

Litigation is a tool for damage control. It provides band-aid support to an individual person and their individual case. It does nothing to engage or enhance human relationships. Rather, it converts real life harm into legal facts to which we can apply legal rules. In the end, litigation is designed to assign blame. It does almost nothing to alter the system that could have prevented the harm in the first place.

It seems common sense therefore that in a litigious nation such as India, where the human drama of a person coming to court is competing with 30 million other human dramas waiting to be heard, preventive law would be the natural option.

What then is preventive law?

Simply put, it anticipates and prevents a legal problem from occurring. In other words it is a proactive mindset.

Most legislation and subsequent litigation are based on solutions to problems which have already occurred. It’s rare to find law which encourages preventive practice. When clients hesitate about going to court, it seems to me that moment is filled with their silent seeking for a more enabling alternative. Something better, less costly, more effective and less time consuming. Where is the guidance which leads them realizing that possibility? Legally speaking- the Constitution. Most Constitutions have a set of rights designed to promote basic fundamental goals for its’ citizens and others. And most Constitutional rights are easy to articulate for clients. You don’t need the legal jargon. What’s complicated about ‘the right to life with dignity’; ‘freedom of expression’; ‘freedom of movement’; or the ‘freedom to practice one’s religion’? Rights we experience in our daily life only we don’t call them ‘constitutional’ or ‘fundamental’ or human, rights.

More simply still, you only need to understand one of these principles to access the rest. Equality. It is the corner stone of all other human rights and therefore, of preventive law practice. Rarely do lawyers draw upon this common sense principle to advocate problem-solving practices outside of litigation.

Take the case of disability or senior citizens for example. Equality norms call for enabling all manner of persons challenged by age or other disability. I discovered this in 1999 when I invited a person with disability to address a Judicial Institute in the South of India. There was no wheelchair access to the building. Until the Institute was faced with a person with disability, such a need/right did not exist for them beyond theory. Initially we built a ramp to allow access to my speaker. After her session however, judicial participants present committed to create like access to their courtrooms. When you alter mind sets, you enable people to think inclusively and practically about others unlike themselves. Consistent with the equality principle, preventive lawyering encourages that brand of proactive understanding

A more poignant example of late is college "ragging" which resulted in the tragic death of a teenager at a medical college in India. Lawyers will file a criminal or civil case, endure an unending trial which may or may not lead to guilt and seek a punishment – which is unlikely to prevent the same offense from happening again. By then, a minimum of 5 years will have lapsed. And more legislation will be sought to ‘solve’ the problem. But human problems crave prompt human attention before life around them wanes and disintegrates.

In all this litigation what compels ‘ragging’ to systematically and proactively stop? Where have institutions been made aware and therefore accountable? Where have stakeholders been consulted and engaged to change ‘the way things are’? Where have we created practices that could have prevented yet another tragic episode?

That is where the practice of preventive lawyering becomes relevant, engaging and transformative. Preventive law could create built-in yardsticks which make educational institutes comply with prohibitions. Financial grants and aid to colleges could be made conditional upon compliance. The goal would go beyond ad-hoc band-aid punishment of individuals to creating a shared culture of responsibility and accountability by all stakeholders (i.e. the University Grants Commission, colleges, students, leadership and decision-makers). This is where preventive law finds its niche. Rather than address a problem through one of loss, blame and litigation, it engages with everyone to use multi-dimensional practices to solve the problem.

What’s the difference with preventive law?

It fulfills a multi-dimensional role of human relating through equality compliance. And it does this through creative possibilities around attitudes (training on myths, stereotypes, and assumptions); environmental aspects (which can sometimes exclude); interacting with the social context of person(s) who are impacted by the problem; better informing the multiple layers of decision-making beyond case law precedents through real life contexts; and challenging the complex jargon of legal language by inviting people to speak and act in ways which give voice to their contexts and concerns. It can be hugely inclusive and certainly less expensive. It makes possible to imagine a number of ways in which a problem can be unpacked and understood- ways which would not have been considered by traditional legal practice.

Where then is our renaissance lawyer who will rescue that client from the procedural escapades of litigation? Who is prepared to swoop into that moments hesitation and suggest at the outset to his or her client - “shall we try the road less traveled by”. It surprises me how much courage it takes to become the renaissance lawyer. In all my experience with litigation, I can name only a few who were inclined to steer clients to a preventive alternative. The rest would go to court.

I truly believe that when lawyers counsel clients to litigate at the outset, it is an act of sabotage. In that default moment of advice, the lawyer has lost sight of why s/he is there in the first place. I say this without judgment. We have bright talent in our legal community and a young generation who is so willing to aspire for more. Perhaps we owe them a different counsel from what we inherited. Entering a client’s hesitation to guide them towards expansive possibilities is what might make law a noble career choice. Indeed it means we must acquire new skills: receptivity to human experience; engaging with social contexts unlike our own, a larger aspiration to benefit others and ofcourse, deep self-reflection on why we are here. Skills that can be cultivated through practice and, if law schools are inclined, through learning.

This is not a call for charity or pro bono work- it is an invitation to rethink our “professionalism”. We are so programmed as lawyers to protect citizens from one another that we have betrayed the skills, function and mindset to facilitate them to cooperate with one another. That is the job of preventive law. To expand the traditional functions and structures of law so as to create openness, understand the emotional, financial, relationship, mental, social and spiritual contexts of problems and the connections between people who experience those contexts. Each time I look at a courtroom and see an inflating race of lawyers ‘battle’ it out, my heart sinks at the lost opportunity and insight of lawyers to help prevent problems from recurring.

I am not advocating the elimination of litigation. There are real occasions when the oppression and dominance of one power over another requires such intervention. But law has to stop being sourced in cases and precedents; it has to come from human interactions which may give rise to a legal problem and not an inevitable court case.

Preventive lawyering is a function whose time has come. Only when we give value to that moment’s hesitation of our client, will the meaning, practice and profession of law be truly served.

© Naina Kapur, 2009

* see Thomas D. Barton and James M. Cooper: Preventive Law and Creative Problem Solving