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Risk Discussions That Satisfy Engineers and Lawyers

Lawyers get nervous when clients talk about safety risks — especially when clients start writing these discussions down. We worry that the client will write something that will be used against the client in the future. At the same time, engineers know that risk must be considered in any discussion involving operations including decisions about staffing, maintenance schedules, and capital budgets. While these concerns may appear difficult to reconcile, there are ways to discuss risk that can satisfy both the lawyers and the engineers.

First, let me make it clear that, as a lawyer, I recognize that risk evaluation is a good thing. But if I have one opinion to share with engineering friends, it is this: Don’t just identify risks and write them down on some list. A fulsome risk analysis must also contain a robust discussion of how those risks will be eliminated or mitigated. Alternatively, if a company decides not to immediately address a risk that has been identified, the company should document its justification for delaying action. Think about it this way: If something goes wrong, and that something was identified — in writing — as a potential risk, will we also be able to show — in writing — what we did to address that risk or why we chose not to? When asked by reporters, investigators, or opposing legal counsel, “What did you do about the risk?” will you have a concise, “bullet point” response to that question?

Too often, lawyers have to assist their clients in developing answers to these questions after something has gone wrong. Instead, executives, managers, and engineers should be thinking about how to answer these questions while they are doing their risk assessments. Getting these important people to think about their bullet point responses to the “What did you do about it?” question can go a long way to satisfying the engineer’s need for guidance in making operational decisions while helping to build the company’s legal defense should there be an incident related to the identified risk. In this way, hands-on training for executives, managers, and engineers that focuses on the positive steps needed to address risk can help deal with risk in a way that becomes a win-win for both the engineers and the lawyers.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.