Have you written a will? Do you have a list (and pictures) of insurable items in your home? Probably not if you are typical. We don’t like to think about negative future events and so we avoid planning for them. Of course, that doesn’t actually solve the problem.
Last weekend, I served on a panel at the International Association of Conflict Management (IACM) annual meeting with Sanda Kaufman, Deborah Shmueli and Chris Honeyman where we each spoke about anticipation from each of our fields–planning, law, & business. (One of the best things about IACM is its interdisciplinary character–highly recommend the meeting and its publications, particularly for those who love experiments.)
What does law do well? As Sanda pointed out in commentary after my presentation, lawyers think well about worst-case scenarios. If we can get you into the room to talk about your will, you can have fun thinking about your death and your spouse’s death; both of you dying together, separately, or sequentially; dying with your kids or leaving them orphaned; and, my particular favorite, your spouse’s remarriage to some woman half your age and weight.
But seriously, if we are so good at this when asked, why can’t we do this in less macabre situations? Chris and I were part of an article published last year talking about this in a business context and I have published earlier articles on preventive law. I argued last week that lawyers, particularly those interested in conflict resolution, should be taking their planning role more seriously and helping their clients to anticipate likely conflicts. What do you think? What tools are out there already to help us help our clients?
As someone that helps at least 3 people a week complete health care directives, and then deals with numerous situations involving individuals that haven’t made ANY clear directive, I would agree that planning is crucial (also take into account many young people will find themselves in these situations– ie traumatic vehicle accidents).
However, one thing I have noticed is that when I am “luckily” faced with a patient with an advance directive that he or she had completed with an attorney, 9.5 times out of 10, I am handed a statutory short form. While it is better than nothing, the basic documents provided by most states are completely unhelpful when faced with clinical situations. My impression would be, that if I actually paid for an attorney– for his or her expertise and experience– I’d get a better product that perhaps, dreams of dreams, addresses the patients actual values relevant to his or her clinical picture. However, what it appears to me that the only thing most attorneys provide is typing their clients name into the document compared to how do-it-yourselfers will hand-write.
In terms of preventing future conflict, at least in terms of health care, filling in names and checking boxes of ‘preferences’ created by the legislature is a poor substitute to narrative expressions of values.