Attorneys (and Others) as Risk Managers.
I am out-of-state, working, playing, and visiting a favorite relative. For work I did a presentation for a client’s management people. (Some of you know the particulars. You’re also likely familiar with ER 1.6 (Confidentiality of Information). No clever comments, please.)
My talk focused on risk management. My education and licensure make me an attorney but, whenever I can be ahead of a problem, I’m really a risk manager. Ideally, I’m ahead of a problem by designing processes that reduce incidents. Alas, those processes only go so far. (Many years ago I represented auto dealers. I told them I could make consumer problems go away, completely. Facing joyful eyes, I had to break the bad news: “You’ll never sell another car, either.”)
In some cases risk management means settling the lawsuit while the jury deliberates. It happens, for reals!
Between the extremes we take what comes, and try mightily to get to the end quickly and with the least amount of sunk costs. (Lay people: when you mention principles and tell your attorney cost doesn’t matter you’re almost surely guaranteeing an unsuccessful outcome, for the fees become a sunk cost which you won’t likely recover.)
The model I’m about to share grows out of Why Doctors Interrupt, which really ought to be titled Why Male Professionals Interrupt. Yes, after a few decades, we’re often right, and getting to the end quickly saves money, but my presentation had my audience totally focused on the need to hear people. “Being heard” will win, every time, as against getting to the answer post haste. And, of course, I said “often” right.
So here’s my model, slightly redacted, for dealing with problem situations. It works with customers, employees, and others in business settings. (I will let my friends in the healing professions decide where and how it might apply in the health and love realms.)
Listen and Learn.*
If a problem develops, listen and learn first.
Start with the complaining party.
Check in with everyone who’s name gets mentioned in a material way.
Double back, as appropriate.
Document everything in a neutral way. (Dragnet: “Just the facts, ma’am.”)
Review information along the way, and when you have all of the information.
View information from the perspective of the complaining party and from the perspective of a third party which does not like The Man, businesses, etc. (Put differently, assume a worst-case outcome, for analysis purposes.)
Contact your superior promptly. (No surprises.)
If a problem suggests a hint of a legal issue call your attorney.
Early involvement matters.
Documentation processes can matter greatly if litigation might arise.
Legal knowledge matters.
Company policies matter.
Early involvement may highlight situations, allowing for company-wide strategies to mitigate other similar situations.
A need to notify insurers may arise.
Once a strategy has been developed, engagement with the complainant follows.
Don’t get ahead of the skis, by doing the engagement first.
Any material situation deserves a post-mortem, to be sure the policies worked.
Bad outcomes do not mandate policy changes in every instance, but every outcome must be reviewed, to be sure we understand why we had a problem.
*LAGER is a cold-brewed beer, brewed slowly and carefully. Don’t rush the process! Or, as my old friend Griff says often, “You have to go slow to go fast!