How Do You Know An Organization Successfully Manages Its Risks?

See below – wording from a poll posted on the Linkedin ISO 31000 Risk Management Standard group – perhaps the poll and the sample answer options provided are tongue-in-cheek, perhaps not, but how does your organization (and its directors) determine that risks and uncertainties are successfully identified, evaluated and managed on an ongoing basis?

How do you know that an organization successfully manages its risks?

  • It is compliant to a standard
  • There has been no major disaster
  • Processes and controls are in place
  • People are competent and accountable
  • You just can’t know

Dave Tate, Esq.

From around the web: ediscovery nightmare story from bowtie blog, but relevant to all; search of juror computer to determine whether web search ban violated; inconsistent ethical instincts article . . . ..

Aspects from following ediscovery nightmare story from bowtie blog have been seen or experienced by many attorneys, businesses, courts and insurance claims representatives – you have to know what you are doing – Click Here For Story.

Search of juror computer to determine whether there was a web search ban violation, Click Here For Story.

Inconsistent ethical instincts and things that can affect them, Click Here For Article.

Dave Tate, Esq. (San Francisco)

The Law Business & Law Schools – A Lot Of Discussion . . And Changes In Both

I have been following the ongoing (1) discussions about the structure and changes in the law or law firm business/profession, and (2) discussions relating to law school operation and the recent new rankings.  (1) and (2) are separate and yet also in some ways inter-related issues.

The law business or profession has been going through a rough time for several years.  Some firms will survive, some will not, and there is also a sustainability factor meaning that some firms will survive for the current partners but there is no longevity for the lower-level attorneys.  The law business also is important for the public at large and for the community as a means to peacefully resolve disputes – people need access to legal representation, and litigation and court costs that they can afford, the lawsuit process needs to be fair and sufficiently time efficient, people need to feel like they had their appropriate opportunity and day in court, and lawyers should be able to earn a reasonable living.

You might also be aware that the US News law school rankings came out recently.  Yes, the rankings are flawed, as are some law school admission processes, but the rankings exist nevertheless. And, the rankings are relevant because some, or many, or most law school applicants decide to go to the “best” law school that they can get into, and they might consider those rankings as part of the decision process.  Perhaps the legal profession should come up with a better ranking system, one that is based on important available verifiable information, to compete with the US News ranking, if the legal profession could agree on better ranking criteria.  This year, and I believe without prior notice, US News changed some of its important ranking criteria.  The result for individual schools was either beneficial, detrimental, or no significant ranking change.  But it would have been wrong for US News to make the significant criteria change without sufficient prior notice.  And, somewhere there should be a critical, public review and evaluation of the criteria that US News uses – including the good, bad, and unknown or unclear.

Here is a link to an interesting PowerPoint about the changing state of the law business (I don’t know why there are blank or black pager, but it doesn’t really matter as you will get the point anyway).  It is my experience that the PowerPoint primarily would apply to large cases such as cases that involve a large volume of documents, or many depositions, or other voluminous evidence, and these are issues that the courts are also still considering for discovery and trial presentation purposes.  Click Here For PowerPoint.

More to follow on these topics.

Dave Tate, Esq. (San Francisco)

USC’s Haden Hires Enfield – Not A Basketball Story – Strategy, Leadership, Decision Making & No Crystal Ball

The article reads, USC’s Athletic Director Pat Haden hires FGCU’s Andy Enfield to lead and improve or rescue USC’s basketball program.

First a different issue: is it okay for Enfield to leave FGCU under these circumstances?  Well . . . I guess that’s just the way sports are now – the first school and the coach have a contract, but a new second school contacts the coach and arranges to hire him (depending on the terms of the contact between the first school and the coach, perhaps interference with the first school’s contract and business advantage?), and although there is a contact between the first school and the coach, apparently either party cancels or perhaps breaches the contract at will, perhaps with a payment of some sort back to the injured party.

More interesting discussions are about strategy, risk or uncertainty management, decision making, governance, and leadership.  The article about USC/Haden hiring Enfield, Click Here For Article, reads like Enfield is a relative unknown or unproven coach but that USC is in a poor position and has no relative chance to attract a more proven coach.  Hence, the arrangement is probably a good one for both Enfield and USC/Haden.

This is certainly one way that an Athletic Director like Haden earns his money.  He made the decision.  Is he a hero or a goat?  Time will tell.  There is no crystal ball.  If it goes well he might even be  a genius.  But if the article is correct, Enfield has some definite proven good qualities but this is an uncertain decision with definite risks and uncertainties.  Without a doubt in basketball and in most sports the head coach makes or breaks the program and the team.  The head coach attracts the talent/players to the team and to the school (can he recruit or bring in the student/players that USC wants and needs), the coach leads the talent on the court (right attitude, approach demeanor and motivation, and does he know today’s winning basketball and how to teach it?), do the players get a good education for life after USC and do they graduate, the coach is the public figure of the team except when the players do good or bad things in public, or there are NCAA violations (shouldn’t be any), and then the coach is potentially responsible for those actions but certainly does have to deal with them, and all of the other things that go with being a head coach, such as all of the people that he needs to be able to work with or handle.

And Enfield appears to have made the decision to move to USC fast – how much does he actually know about the USC program, the good and bad of the program, what he has to work with, how much time he has to succeed, and about the stakeholders (the people that he will work with or under, and the alumni)?

The risks for USC/Haden: was it a good choice, and if it goes well, how long will Enfield stay with USC?  If it wasn’t a good choice, should there be repercussions to Haden?  USC needs to get its basketball program in order, along with its football program.  Both are disappointing for a school like USC.

The risks for Enfield: most likely it was a step up but there are uncertainties about what he will face at USC – can he attract the talent and will his approach work there?  Well . . . he gets the chance to prove himself on a bigger stage so no risk to Enfield there unless the program at USC is dysfunctional and he cannot fix it.  But in that circumstance it isn’t necessarily his fault.  If Enfield doesn’t succeed, either because of the program at USC or because he isn’t the coach that USC/Haden hope that he is, then he’s fired eventually but is picked up again by another school of reasonable but perhaps less quality or visibility. Most likely this is a good opportunity for Enfield.

This will be an interesting progression to watch in the coming years, depending on how long the relationship lasts.

Dave Tate, Esq. (San Francisco) – see my March 28 blog post for board, audit committee, annual self-evaluation, dispute resolution and other useful forms.

Data Backup, But Still Experiencing Data Loss – Kroll Survey

Kroll Ontrack survey, 60 percent of respondents utilized backup solutions (that doesn’t seem very high), but sill experienced data loss, Click Here For Article.

Dave Tate, Esq. (San Francisco)

Hyperlink Should Not Infringe Copyright…….

So, here is a hyperlink, to an article – the European Copyright Society says that providing a hyperlink should not infringe copyright, what has also been my understanding under US law, Click Here For Article. And, if it is ever determined that forwarding a hyperlink does infringe copyright, it will surely hinder and hurt the communication of ideas and information.

Governance, Risk & Liability Update, A Daily Paper; No Time For Improvement – Make Time; Barriers To Effective Risk Management

New daily updated edition of Governance, Risk & Liability, a daily paper containing new articles and discussions about governance, risk and liability, Click Here For Paper.

No Time For Improvement (Make Time), article by Mark Graban, Click Here For Article.

Norman Marks, Barriers To Effective Risk Management, Click Here For Blog Discussion.

Enjoy, and pass along,
Dave Tate, Esq. (San Francisco)

Tools – Board & Audit Committee Evaluation, Risk Mgmt., Dispute Resolution – Use Them & Pass Long

Please see attached below (enjoy, use, and pass to others) – Dave Tate, Esq. (San Francisco)

1. Board Annual Self-Evaluation Form, Board Of Directors Annual Self Evaluation David Tate Esq 03142013

2. Audit Committee Annual Self-Evaluation Form, Audit Committee Annual Self Evaluation Form David Tate Esq 031413

3. Risk & Uncertainty Management Form – Processes & Oversight, Risk & Uncertainty Management Form – Processes & Oversight Dave Tate Esq 03282013

4. Dispute Resolution & Mediation Preparation Form, Dispute Resolution & Mediation Preparation Form, David Tate, Esq. 03222013

5. 2-Page Board & Director Guidelines, 2-Page Board & Director Guidelines Dave Tate Esq 03292013

Board & Director Risk & Uncertainty Management Form – a Work in Progress


Board & Director Oversight of Risk & Uncertainty Management Form

Dave Tate, Esq. (San Francisco);

(See also separate board and committee evaluation materials for additional detailed discussion.)

This form is a work in progress – I seldom publish materials that are works in progress, but in this circumstance I don’t see why not as the current state of risk and uncertainty management, and board and director over sight of risk and uncertainty management are all in various degrees of continual development and they will continue as such.

I have intentionally not provided a checklist of general or specific risks and uncertainties, or a checklist of risks and uncertainties that might be applicable in a particular situation or for a particular entity or for a particular industry, or a checklist or discussion about risks and uncertainties that are or might be appropriate for board oversight within the context of a particular organization. More specific or targeted risk and uncertainty discussions can be provided and sometimes found in other materials. But doing so in this material could cause more limited application of this form, which is contrary to the intent.

Management is responsible for risk management. The board and directors serve an oversight function. As a general proposition all risk cannot be absolutely or even reasonably identified, assessed, controlled or managed, or eliminated, and to varying extent risk and uncertainty management requires the exercise of judgment relating to the future, which is occurring and potentially or actually changing or shifting at various or altering speeds or velocity.

I have not discussed in this form board, board committee or director oversight or risk oversight responsibilities as those topics and discussions are for other materials, some of which can be found in other separate papers and forms relating to annual self evaluation.

Technical and detailed materials, discussions and opinions about risk management already are voluminous – at times it seems that they are increasing from unlimited sources and directions. As eyes gloss over it is easy to lose sight of the forest for the trees. Instead, the intent of this form, as a current work in progress, is to provide one useful version of a concise and uncomplicated but accurate easy to use and get started format to assist in the oversight of risk and uncertainty management processes.

For some people the format provided in this form will be too uncomplicated and detail lacking, and some of my risk professional friends might well consider the form too simplistic; but any user of this form can add and continue to add as much detail as desired. I don’t expect the majority of directors to be interested in reading and understanding twenty, or thirty, or more pages of technical terminology, materials and alternative theories and approaches. This form encourages a keep going or get started approach.

I do note that as this is a developing area management might in part use different or additional risk management terminology or processes, some of which might or might not be appropriate or universally understood. With respect to oversight, the director should ask appropriate questions of management so that he or she sufficiently understands the terminology and processes in use.

The discussions in this form are applicable for all entities – public companies, private companies and organizations, nonprofits and governmental entities – although depending on the entity type or situation, sometimes the terminology or context might be or need to be different, and of course some members of management and directors are extremely knowledgeable about these topics whereas others are somewhere in the middle or just beginning. All of that is okay.

This form does not provide legal or other professional advice, and does not discuss legal or other professional standards, requirements or responsibilities – you should consult with a professional about your specific situation.

1. Risk and Uncertainty Management Defined

Several established and broadly recognized organizations have each developed and provided their definitions of risk and uncertainty management. But there is no universally accepted definition. You will note that throughout this form in addition to “risk” I have included “uncertainty.” I prefer “uncertainty” but the more often heard reference is to “risk” management. “Risk” suggests the occurrence of a negative or loss deviation from expected results; however, as deviations can also be positive or beneficial, I believe that “uncertainty” management is the more accurate description. In part ISO 31000 Risk Management uses the “uncertainty” terminology (ISO stands for International Organization for Standardization). Accordingly, for this form I have used both “risk” and “uncertainty” recognizing that “risk” is more universally used whereas “uncertainty” is also used and is more accurate.

Risk and uncertainty management: activities and processes used to help and attempt to identify, evaluate or assess, manage and control, and monitor risks and uncertainties that may or may not occur in the future. Risk, according to ISO 31000, is the effect of uncertainty on objectives. Uncertainty or lack of uncertainty exists when knowledge or understanding of an event, consequence or likelihood is inadequate, incomplete or not absolute. In other words, as to the future we don’t have a crystal ball, and there is a chance that things will not go according to plan or as anticipated or assumed. The chance of deviation from plan or anticipation or assumption can be negative or a loss, or positive or a benefit.

2. Risk and Uncertainty Management Processes

No universally accepted process……..

Insert/discuss generally understood or agreed upon processes………..

Terminology that I generally don’t like or that I have problems with depending on how they are used or defined, and why: risk appetite, risk tolerance, some definitions or uses of assessment, and similar………

Consider inserting a table of processes or steps to consider…………

Insert text boxes for generally understood or agreed upon processes……..

* * * * * * *

Forms & Papers – Board & Audit Committee Self Evaluation Forms, 2-Page Board & Director Guidelines, Dispute Resolution & Mediation Preparation Form – Read – Pass to Others – Etc.


Click below, read, and pass to others:

2-Page Board & Director Guidelines Dave Tate Esq 03232013

Board Of Directors Annual Self Evaluation David Tate Esq 03142013

Audit Committee Annual Self Evaluation Form David Tate Esq 031413

Dispute Resolution & Mediation Preparation Form, David Tate, Esq. 03222013

Dave Tate, Esq. (San Francisco)