Horizon Scanning - non-legal sources
7 "Framing F's" for in-house lawyers in assessing those sources.
Lawyers are trained to: 1: try to ascertain facts; 2: apply or interpret relatively clear and certain texts - statute, case law, regulations guidance notes etc – to those facts; and 3: explain how the facts and the texts interact.
Of course there can be still be a lot of uncertainty. But the origins of the data, the authority of the author, the precedence of the documents and the process of validating the material before publication are all ascertainable.
As lawyers become more involved in "horizon scanning"; not just for legal change, but also for potential future changes in politics, the economy, societal views etc as part of the "general" aspect of their "general counsel" role; we have to research and to form views based on less robust sources - and often in haste.
Some reporting is of variable quality (some of it might even be "fake news") and it is always good to check several sources for a story - not least to see if the text is nearly identical and may therefore have been copied uncritically from a "spun" press release.
Look carefully and it quickly becomes apparent that a lot of "news" is little more than "advertorial" for the views of a company, a trade body, a person or a political party. Ironically, the advertising; which is also regulated and which originates from companies with people like us in them; may sometimes be more accurately fact checked and more carefully expressed than the "news" and particularly the "opinions" that it is wrapped around.
It is good to see if you can try to ascertain and allow for the explicit or implicit biases of the source of the news too: whether it be the funding sources of the research centre or think tank that a report comes from; or the politics of its senior staff; or, with a journalist, the politics of the blogs or publications that they contribute to other than the one that you are reading or hearing them in. This is, after all, only doing the sort of conflicts checks and disclosures that we expect of our senior management.
So how do we assess the reliability of what we read or hear when we are being asked, often in haste, to form an opinion and comment on something?
There are no guaranteed answers to this but here is a brief analysis framework, the "7F's", which might help you critically to assess how much reliance you can place (at least without further checks) on something that you read or hear that is not from a "legal grade source".
So, when reading or hearing an assertion made, it might help to try to test that assertion by asking yourself how much of what has been said is:
F1: Framed properly: "no news is good news - but good news is no news". And a lot of what we read is not really newsworthy or important - it is just dramatised to make it look that way to fill the gaping 24/7 maw of social media, print, TV and radio scheduling needs (news can be very cheap content) and/or to oversell an interested party's preferred position. If it is "framed" or contextualised properly then much of what we read or hear is not as big, good, bad, persuasive etc as it seems (and it would also not appear newsworthy).
However the converse is often true and important messages that (1) people want to play down or (2) are communicated by poor communicators are often lost or underrated. Which it is important to read widely and not just the headlines on the main media that we feel comfortable with and which conforms to our personal prejudices rather than to our professional "as balanced as possible" view.
The media desire for a debate can also often give the impression that there is an equal weight of opinion, data or support for both protagonists view-points. Sometimes this is not the case and one voice may not actually have much "substance" behind their assertions – so fact checking behind comments made in these settings is prudent before relying on it.
Illustratively £350m is a popular number at present but whether it is meaningful at all for any of its users entirely depends on contexts like the time over which it is deployed, how much as a % it adds or detracts from another sum to which it is being related, whether it is "net" or "gross", before or after tax, "up to" or "at least" and "guaranteed" or "possible" or "conditional", what exchange rate applies etc.
So, whether it be survey data or spending announcements, check the Framing first.
F2: Fact (Current): something that definitely exists now (or definitely cannot happen now):
e.g. a law, a contract, a regulation, an employment relationship, an amount of money, a physical object (and physics!), a company, a treaty obligation, the inability to spend next year's company budget now or to start to negotiate something when the other side is refusing to do so. Even if it is a Fact- is the relevant aspect of the Fact and the context (i.e. the Framing) being explained correctly (See F7 below)?
F3: Future (Fact): something which it is almost certain will (or will not happen) barring exceptional circumstances because of something that is known now:
e.g. a contractual obligation (assuming that people will obey their contract); a law or treaty obligation that will not or cannot in process terms be changed by the future date in question (assuming that people cannot do what the law or treaties do not allow); the length of time it takes to employ or train someone; or to build a premises; or the development lead time for a new software or project; or the length of a clearly defined process that cannot or people will not short-cut process (such as a change control mechanism, a trade group application process, a regulatory process etc).
F4: Forecast: of course most experts' forecasts were wrong. They are, after all, guesses at a given point in time about how the Facts and Future Facts known to the guesser will interact with the relevant human actors' emotions, behaviours, decisions and actions and with unplannable occurrences (like the ash cloud a few years back) to produce future outcomes. However, because the experts are, hopefully, basing their guesses on more relevant current data than amateurs their guesses should normally but not always be less wrong than the inexperts.
So some of the questions to ask when assessing how much reliance to place on a forecast are:
- how well informed the guesser is about these factors mentioned above (depth of relevant and current expertise);
- how recently the guess was made (as facts change all the time);
- what assumptions and knowledge sources were used by the guesser in forming their guess;
- the degree of actual analysis done and on what quality of underlying data (and beware of great summary analysis of poor secondary sources);
- how much the guesser's overt and subconscious biases may be distorting their guesses about how other people with different biases will emote, behave and act (beware people in insulated positions and the risk of group think); and
- whether the guess was produced for a different or narrower purpose than the purpose for which it is being held out/used now (e.g. going concern predictions and forward looking statements in corporate accounts)
It is also worth distinguishing between a Forecast (a best guess about the future actions of others) and a statement of planned activity from a decision maker about things that they will do or will not do if certain other things happen. The latter, if carefully considered and if the conditionalities have been clearly articulated, is more of a Future Fact than a Forecast and, accordingly should be separated out from each other and the latter (including, with care, the accumulation of those decision makers statements – e.g. through trade bodies) and given a lot more regard.
F5: Favoured Position: most experts and commentators will have a preferred view on what they comment about which will be reflected either explicitly or implicitly in their commentary about where, in the range of likely outcomes, something is going to end up. It is helpful to try to understand for your own decision on how to value what they say on whether:
- a: this is a "there are a range of very similarly likely outcomes but I need to favour one to sound decisive/informed" view or
- b: a "for good reasons this is more likely" view; or
- c: an "I am moving from 'Forecasting' within the range of options that are possible to 'wishcasting' the outcome that, while possible, is not the most likely.. but it is the one that I would be most happy with"
F6: Fantasy: a "wishcast" by an expert or an amateur without consciously making a rounded/much/or any attempt to understand the Facts and the Future Facts and or the humans that will be involved. However sometimes Fantasies do come true because the absence of conscious (or any) analysis has ended up coalescing with where the analysis would also have lead.
So with a prevalent Fantasy among relevant decision makers and/or of the actors needed to make something that somebody else has decided on happen or not happen then the scale, strength and impact on those decision makers and/or actors needs to be understood and the Facts and Future Facts assessed to see if there is actually a Factual alignment with the Fantasy.
F7: Fiction: a "wishcast" made in the knowledge, or which should be in the knowledge (given their role and responsibilities), of the "wishcaster" that the Facts or Future Facts make the wishcast impossible or highly unlikely and/or where the presentation of the "wishcast" knowingly distorts the Framing to omit or mischaracterise important Facts or Future Facts in order to make an incredible assertion seem credible.
- a Fact could be the current WTO rules,
- a Future Fact, the process that a new entrant must go through to apply,
- a Forecast the range of times that it typically takes applicants to make a successful application,
- a Favoured outcome would be the aspiration of where within that range a new applicant country would fall; with a "wishcast" being at the shorter end of that range unless the reasoning for that position is clearly and credibly articulated by reference to relevant Facts;
- a Fiction, perhaps, a view from an expert or person in a position of responsibility (such as a lawyer) who should ensure that they are informed before making a comment upon which the recipient of that comment is intended to rely; that some specified course of action would easily achieve outcomes that are inconsistent with, for example, core stated WTO principles such as Trade (with other states) Without Discrimination (i.e. not discriminating in what is offered between different states) (www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm), without that expert providing credible substantiation to explain the view.
(I am not an expert on the WTO. So I have no view on this and you should not infer anything from this example other than that it is a concise and topical illustration of something that you might need to think about as part of your business' forward strategic planning work if your business imports/exports to/from the UK – and yes, that is a legal disclaimer).
The Framing for this worked example and the conclusions that you should draw would be dependent on what assertions or statements were being made in the article that you were reading and what you need to do/not do which is dependent on that analysis – so that is down to you.
As a final thought. This 7Fs does not just apply to only what you read but also to what you communicate and/or which the organisation for which you work communicates. As a GC you will normally be perceived, given your role and responsibilities, as being expert if you comment on something. So it is particularly important for your own and your organisation's credibility that you stay in F1-5 and do not stray into F6 or F7!