10 Things Lawyers Should Consider When Taking Risk (Perspective)

Editor’s Note: The author of this post works in-house for Microsoft and is based in Chicago. 

By Dennis Garcia, Assistant General Counsel, Microsoft Corporation

Recent geopolitical developments have made our world increasingly unpredictable. More than ever before lawyers need to bring their “A” game every single day to help their clients take smart risks as they pursue their business objectives in a changed and more complex environment.

While there’s no singular definition or way to engage in smart risk-taking, a good starting point involves embracing these two fundamental concepts: (1) never, ever assume any integrity risks; and (2) never put your customers, partners and employees at risk.

Since embracing compliance and respecting your customers, partners and employees should be straightforward foundational pillars to guide your clients in making risk-based decisions, let’s consider some specific smart risk-taking practices that you may want to consider employing when advising your clients. Over the years I’ve developed a methodology that I call the “10Ps” of smart risk-taking. While I originally created these “10Ps” to help advise my clients in taking smart risks during complex contract negotiations, I believe this framework can also be applied more broadly.

Let’s review these “10Ps” one by one:

Practicality

Consider whether you are focusing on theoretical risk or on the actual and tangible effect in assuming a specific risk regarding the matter where your advice is sought. It is much easier to thoughtfully assess a potential risk if you break it down to understand its real, quantifiable and practical impact to your clients versus viewing it in an abstract fashion.

Perform

Simply put it is not a smart risk to undertake any obligation that your organization cannot perform and fulfill. Doing so may lead to confusion, unhappy customers and partners and potential disputes.

Precedent

Be mindful of the future expectations and precedent that you may set by taking on more risk. When you decide to assume additional risk in a certain situation, make sure that you take a long-term view of that risk, as it may not be contained to just one isolated matter.

Process

Depending on the level of risk that you are asked to assume, it is critical to first obtain any applicable approval from specific stakeholders(s) that may be required as part of your organization’s internal processes. Respecting and following through on an organization’s internal controls and procedures is an important element of smart risk-taking.

Past

It is always instructive to understand what your organization has done in the past to address a specific risk. Any prior approval, denial, lessons learned or alternative solutions for such risk (and their associated analysis) will help shape your risk-taking determination.

Players

Try to ascertain whether the key players in your industry – your competitors and other marketplace leaders – are also agreeing to the same types of additional risk that your organization may be considering. While it may be challenging to obtain such information since it may be confidential, any publicly available marketplace intelligence may be helpful in determining whether the additional risk that your organization is considering is indeed commercially reasonable and industry standard for your marketplace – and thus more easily rationalized as a smart risk or not.

Public

As we all know in our social media driven environment, news and other information travels extremely fast. Actively consider how your smart risk-taking guidance may be perceived outside of your organization in the event it becomes public.

Principles

When analyzing and balancing risk your organization should stay true to its fundamental core values and principles. Such values and principles should always serve as your organization’s “north star” that guides its smart risk-taking decision making process.

Patience

Even though we live in a fast-paced and technology-driven world, please make sure that you are deliberate and patient regarding your smart risk-taking decision-making. Take the necessary time to gather the appropriate facts, slow down a bit so that you and your clients can think clearly, and do not be pressured into making a quick and less than ideal smart risk-taking decision.

People

Remember that your clients are busy professionals who probably do not have a legal background. Be sure to clearly communicate your smart risk-taking recommendations in a format that is succinct and easily understood by a regular person.

Helping your clients engage in smart risk-taking during these uncertain times provides all lawyers with a great opportunity to demonstrate their skills as trusted legal advisors.

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