In our last sub-chapter on Chess I said that too many lawyers spend so much time thinking (and endlessly talking) about what might happen ten steps ahead, that they miss the only step they can really do anything about – the next one. I would like to pick up on that theme here, but specifically with respect to the topic of Lawyers as Risk Managers.
First, let us define Risk Management. At Itkowitz PLLC we believe that, in the context of your litigation, your lawyer should help you to identify, assess, and prioritize risks; and then coordinate resources to minimize and monitor the probability and/or impact of negative events.
Many lawyers today, however, lead clients to believe that risk management means something else. And many clients are happy to believe that risk management means something else. That something else is that clients expect lawyers to: (1) ameliorate risk; and (2) if the risk cannot be ameliorated, clients expect lawyers to absorb the risk. Neither of these outcomes are realistic or even possible. Nothing can eliminate risk. And if negative events happen, they happen to the client, not to the lawyer. It really achieves nothing for either the lawyer or the client to pretend that such is not the case.
Back to the honest definition of Risk management that works: In the context of your litigation, your lawyer should help you to identify, assess, and prioritize risks; and then coordinate resources to minimize and monitor the probability and/or impact of bad events.
How is this achieved? An experienced lawyer who is also a businessperson with an understanding of your industry will have a strong advantage in this regard over a young, less experienced practitioner. We have that advantage at Itkowitz PLLC. But experience alone is not all you need for Risk Management, and any lawyer, no matter how fresh to the practice of law, can optimize his or her proficiency at Risk Management by utilizing the Legal Project Management concepts of Information Gathering, Client Goal Identification, Formulating a Project Charter, Communication and Engagement with the Client, Allocating Resources, Budgeting and Cost Control, and Critical Thinking.
Meaningful Risk Management requires looking holistically at the client and the matter, considering the big picture and how your involvement as a lawyer will tend to further the client’s goals. So, for example:
(1) If your client is about to sue a celebrity, you need to consider the impact that the press will have on the engagement, and perhaps engage and consult with the client’s Public Relations advisers.
(2) If your client is a shareholder about to sue his co-op board, you may want to consider whether the client wants to sell that unit in the near future and what impact litigation will have for the prospects of such a future sale.
(3) If your client is a commercial landlord who wants to prompt the Department of Buildings to violate a tenant for allowing defective conditions at the subject premises as a vehicle for a lease default, you may want to consider the effect of such violations on the building in the long run.
Legal Project Management, as discussed in these chapters, facilitates this type of Risk Management thought.
Labels: Ch. 21 - Risk