It's very frustrating to hear of a good idea killed at birth by a lawyer who warns of "legal risks" but leaves the idea's champion unconvinced that the legal issues are critical or unmanageable. How can the manager fight back? Instead of freezing when hearing the phrase "legal risks", how can a manager who does not have a law degree test the "legal risks"?
To answer this question imagine a context. Imagine you have a new IT idea for your company and as the project manager you are suddenly blocked by advice by the company's lawyer that legal risks would arise at the commercialisation stage. You are unconvinced, you want clarity about the legal risks.
Assume your idea involves collaboration between enterprises over the net involving a lead blogger in each organisation. The legal risk may be very real. But are the legal risks sufficient for you to drop your idea?
10 practical hints for testing and measuring legal opinion
Before agreeing to kill your idea for apparent legal risk reasons, it is best to at least try to test and measure the legal opinion. Here briefly are some suggested useful queries to raise:
Ask for an assessment of the level of risk
Ask for a value in dollars to be applied to each alternative, if feasible
Ask for the legal risk to be measured against business benefits and considerations;
Ask for a cost/benefit analysis, if appropriate
Query if a legal audit, due diligence or risk management mechanism can be used to effectively treat the risk
Ask for an independent second opinion by a lawyer with a second degree outside law
Ask for a graphic to simplify and illustrate the problem for general discussion
Ask how many cases are there of proven breach in the field or how often it is that action is taken to deal with the alleged legal issue
Ask for a table setting out facts in a simpler format so the issues are made clearer
Ask for a measurement of risks in a spreadsheet
Each of these hints might help you level the playing field for review of a legal opinion against other considerations, if appropriate. Some of the hints may take the company's lawyer out of his or her comfort zone. That might be when you need to talk about alternative or multiple techniques for dealing with legal risks. It may be then useful to mention the legal risks which arose in the commercialisation of trains and cars.
Legal risks and the commercialisation of trains and cars
In the last two centuries legal issues for trains and cars would have gone away if the vehicles were motionless. Moving vehicles have long been know to involve obvious legal risks. In 1918 in Sweden 42 people died in the train accident at Geta as shown in the accompanying photo. Why have lawyers and the law not killed trains, cars and other moving vehicles?
Motion is the very reason for being of trains and cars. Motion involves risk, including legal risk. As a society we take the risk of motion, and live and treat the potentially terrible and legal consequences, with legal and non-legal risk management or treatment.
The World Health Organisation reports that: "Worldwide, an estimated 1.2 million people are killed in road crashes each year and as many as 50 million are injured." Society responds to this appalling toll, with legal and non-legal treatments. They include road rules, compulsory personal injury insurance, mandatory safety standards for vehicles, compulsory learner driver training, driver testing on licence renewals and various elements of Welfare State support. Hence there are legal risks, but there are also legal and non-legal treatments.
Your next legal risk
The same rigour or breadth of approach may be appropriate when reviewing the legal considerations and risks associated with something completely new - your next idea faced by advice that there are "legal risks".