Anticipatory Disruption and Risk Management

After delivering a recent presentation on disruptive technology in the workplace, my co-panelists and I were asked: what exactly do we mean by the overused word “disruptive?”

My limited definition – technology that fundamentally alters the relationship between employee and employer – was unsatisfactory to those who argued that to be disruptive, the technology in question must already be in place, having an impact, and that it is very hard to know disruption when one sees it because, like in the case of Henry Ford’s automobile, it was a long while before we knew exactly what we had on our hands.

My response was that the role of a lawyer is not just to describe the world as it presently is, but also to make calculated predictions on what the world will be.   It is well understood that risk management is the calculation of the probability that some harm might occur and then the determination whether the cost to ameliorate that harm is worth the investment.

Here, we engage in the process of “Anticipatory Disruption” to model the risk surrounding these new technologies even ahead of their deployment.

On hearing this, a co-panelist suggested that the difference between lawyers and technologists is the former look to avoid risk and the latter embrace risk, learn from their failures, and recover with new ideas built on the platform of hard-won experience.

I would again disagree.  Managing risk does not mean being cowed by it.  It should mean to the lawyer precisely what it means to the technologist – the only difference is that the gauge of risk is not the lawyer’s own risk tolerance, it is the client’s risk tolerance (actually, ideally, it is a partnership of the two).   Anticipatory Disruption is this very idea: understanding the implications of technologies and understanding how to best be in the position to exploit, embrace, manage or reject it within a business’ risk-sensitive context.

Last, I would suggest that an earlier piece I wrote – on the impact of employment law risk on early stage funders – understated this point.  The investor must understand the employment law exposure of a potential funding target.  But the investor must also understand the workplace risk the technology will pose for employers.  And they will need to understand how those employers, and their lawyers, will react to it.  In short, in order to value the target, they need to anticipate the Anticipatory Disruption of the employment relationship.  Easier written than said.

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