My major job as a authorized skilled and management marketing consultant is to assist purchasers determine dangers and circumnavigate issues of their day-to-day operations. This occurs on each a macro and a micro stage. Threat portfolios are typically slim in scope and comprised of repeating patterns. A great instance of that is lively litigation. In different cases, like adjusting a contract to a newly established legislation, the size is bigger and patterns will be extra complicated.
Through the years, I’ve developed a number of methods to assist consider threat and achieve my job. One includes a three-step course of for which I can not take credit score on the terminology. Whether or not you want him or not, former Secretary of Protection Donald Rumsfeld is a great particular person. I borrow his labels right here.
In each scenario, we should always begin with the “knowns.” That is data we all know to be true. It normally seems within the type of issues everybody agrees on or that may be proven to be the case definitively with some form of proof. Written paperwork, images, or different visible or auditory proof fall into this class. Figuring out the essential authorized ideas or sensible management parts in play normally happens at this stage.
Subsequent, you’ll need to determine the “identified unknowns.” These are issues on which you don’t have the data or established settlement however must develop a technique or resolve. Consciousness of a mission delay, for instance, is usually clear. Nonetheless, till a full schedule and delay evaluation is completed, the data of who and what brought about the delay (placing hunches apart) is a “identified unknown.”
The ultimate a part of the evaluation is contemplating “unknown unknowns.” This represents full blind spots. You don’t know the data. Even worse, you might be unaware it’s lacking. “Unknown unknowns” are full surprises that violate any anticipated norm. An actual-life instance of this was the COVID-19 pandemic. In January 2020, nobody may moderately anticipate that the federal government would shut all companies down. It was an “unknown unknown” threat that might not be accounted for in any contract.
This established terminology helps present an orderly approach to work by the method. Begin the evaluation by merely asking lots of questions concerning the circumstances. An acceptable stage of skepticism is important right here. My purchasers typically interpret my inquiries to counsel I don’t consider them. My purpose, nonetheless, is to exactly set up the “knowns.”
I then determine the metaphorical holes in our data. Typically, we will make cheap assumptions about what occurred or what legislation will apply, however we nonetheless can’t be particular about whether or not we’re proper or whether or not the opposite aspect will agree. With the “identified unknowns” remoted, we will develop a plan to show them into “knowns.” A standard manner to do that in litigation is discovery. When negotiating a contract or one thing related, we’ve to ask the opposite aspect to assist us perceive their place.
Lastly, we have to spend time fascinated with attainable “unknown unknowns” after our “knowns” and “identified unknowns” are established. By definition, there isn’t a approach to get full solutions to those questions; however strong judgment primarily based on expertise and instinct is useful right here. There are sometimes indicators from which we will discern potential areas for surprises. Whereas a complete authorities shutdown of COVID-19 was unforeseeable, planning for vital mission adjustments might have been an affordable guess primarily based on information experiences in early 2020.
In the end, the purpose is to determine and mitigate the dangers as a part of a plan to maneuver the mission ahead. This technique supplies a methodical approach to funnel data right into a easy type to assist sound decision-making. I hope you should use this analytical technique to navigate any threat mitigation course of simply.
Josh Quinter is a business litigation legal professional with a deal with development legislation. He’s additionally a member of the board of administrators and a division chair at his legislation agency, Quinter Corbett, PC. Energetic in a number of development commerce and enterprise organizations, Quinter is previous president of the Mid-Atlantic Chapter of the Metallic Constructing Contractors & Erectors Affiliation (MBCEA), serves on the MBCEA nationwide board, and is the group’s normal counsel. He will be reached at jquinter@quintercorbett.com
