A recurring theme came out of the 2018 INTA Annual Meeting in Seattle for me. With a background in management science and half a decade of operations management before entering the legal profession, I am no stranger to the concepts of risk management and decision analysis.
In fact, this background in risk analysis permeates my thinking to such an extent that it cannot help but influence how I go about analyzing and writing opinions. What I did not realize is that this perspective of analysis appears to be less common in the profession as a whole.
Specifically, among the in-house counsels I interacted with, both privately and among the various speakers I heard from, I saw a common refrain: most businesses want you to provide them with advice which allows those businesses to understand the actual risks before them, so they can make good decisions based on their own risk profile.
While my own reaction to this refrain was, “Duh”, it appears that deference to the individual risk profile of a business or matter is missing from the advice many practitioners are giving. The sentiment I heard repeated from in-house counsels was that there is a tendency in the profession to provide advice in an effort to minimize client liability at nearly any cost. And while this perspective may be well intentioned, it can also be myopic in the face of the actual goals of the business.
What is apparently less understood by many practitioners is that the goal of any business is not to minimize risk absolutely, but to efficiently manage risk within the context of a desired return. While greater risk carries with it the higher chance of failure, when managed efficiently, it also carries with it a chance of greater reward. As such, a start-up looking to redefine an entire industry is going to have a higher tolerance for risk than an established company whose primary goal is to make its dividend payment to its institutional investors. And that context is key when providing businesses with meaningful and practical advice.
It is not our job to decide what the individual risk profile of a business should be. I believe it is our job to provide advice that gives those businesses sufficient information to make an informed choice within the context of their own tolerance for risk.
Many companies are trying to manage sizable trade-mark portfolios across multiple jurisdictions as efficiently as possible. Being able to succinctly sum up the primary risks and choices before the business, particularly if it is in the context of their individual risk profile, is greatly appreciated.
And, personally, its feels nice to be appreciated.