My heart and thoughts continue to go out to my fellow Houstonians, fellow Texans and now Louisianans and all other affected by Hurricane Harvey. I continue my exploration of weather related themes from which the compliance practitioner can learn and use in a best practices compliance program going forward. Today I want to consider fog and its purported use as a literally symbol. If one were to think of one scene involving the city of London up to about 1950, it would most probably involve fog. More particularly, it would be what is generally known as ‘pea-soup’ fog. In almost any movie ever made, featuring Victorian to mid-20th century London, the overwhelming motif was all-encompassing fog. The same holds true for literature.

In fiction, one of the characters most closely associated with fog is Sherlock Holmes. However, there is very little use of fog in Doyle tales, almost all of which are set under clear skies. I could find three references to fog in the work of Holmes. In A Study in Scarlet there was “a dun-coloured veil hung over the house-tops.” In The Sign of Four, Holmes rapses; “What else is there to live for? Stand at the window here. Was ever such a dreary, dismal, unprofitable world? See how the yellow fog swirls down the street and drifts across the dun-coloured houses”, and, later “…the day had been a dreary one, and a dense drizzly fog lay low upon the great city. Mud-coloured clouds hung over the muddy streets.”

Only in The Adventure of the Bruce-Partington Plans, did Holmes make use of fog as a plot device, using it to conceal the criminal as he hides the body of his victim on the roof of an underground train. Holmes describes the scene “a dense yellow fog” that has settled down over London, and later notes “a greasy, heavy brown swirl still drifting past us and condensing in oily drops on the windowpane”. Holmes never even used the phrase ‘pea-soup’ fog.

Today’s compliance connection is the root cause analysis. From a through root cause analysis of Doyle’s writings, it is clear fog is a not a major player in the tales or even a mood or scene motif in the Sherlock Holmes stories. This revelation ties directly into the concept of a root cause analysis that was set out in the Department of Justice’s (DOJ’s) Evaluation of Corporate Compliance Programs (Evaluation). Under Prong 1, entitledAnalysis and Remediation of Underlying Misconduct”, it states Root Cause Analysis – What is the company’s root cause analysis of the misconduct at issue? What systemic issues were identified? Who in the company was involved in making the analysis?

A root cause analysis is a method to learn more about your business process and what occurred so that the controls, systems and process can be remediated. A root cause analysis allows you to determine the true cause of an incident, not one that simply hypothesizes a bad actor within a company going rogue. If you just fire someone, without changing the process, you are going to keep getting similar or the same results. Assessing blame does not help, as you want to get deeper into those root causes. The reason the entire process is named ‘root cause analysis’, is to emphasize the need to drill down below the superficial pieces of the framework to fix, and into the things that are driving the outcomes and the behaviors.

As Mike Volkov has noted, “Companies often face situations where they discover misconduct, impose discipline and remediate the problems discovered and then move on. This happens more often than misconduct resulting in a government disclosure or a government investigation. In either case, the questions are certainly relevant. The questions appear to be fairly basic but depending on the circumstances can be deadly accurate in pointing out compliance deficiencies. A root cause can implicate not only employee misconduct or failure to exercise proper oversight, but can extend to such issues as a company’s culture, tone-at-the-top and other issues with significant implications for the company’s operations.”

When root cause analysis is done correctly and utilized as a part of your remediation strategy going forward, it principally is there in order to develop preventive actions. A preventive action is something to prevent recurrence of the problem. You can correct with a corrective action, but the ultimate goal is to engineer out or fix the system and processes so you do not have the opportunity for that flaw to occur again.

Ben Locwin put it another way, stating “We have a problem. Let’s not run away from it. Let’s embrace it.” What you are really doing is looking at your program from the inside out. Locwin advocates beginning with such questions as “What can we do better? What can we do next?” He went on to explain “you’re looking for examination from an external and not an internal prospective. Internal perspectives tend to follow along the quotas. If you always do what you always did, then you’ll always get what you always got.” He went on to say, “continuous improvement approaches benefit most from” its “frequent exposures to radical change.”

It is the willingness of a company to look at itself that is the key to continuous improvement. Locwin said that while “typically these things come from external pressures and not from internal, incremental changes. If you take a step back, or maybe several steps back to say, what are we actually trying to do, and are we reaping the value that we’re intending to get out of what we have. If we’re not, then we should look for this really systemic overhaul of things, and not just try to tweak a little thing here and a little thing there.”

A root cause analysis can be used to strengthen the prevention prong of your best practices compliance program. Thinking of the proper manner to use a root cause analysis, to find facts and not assess blame will take your compliance program to an entirely higher level of proficiency. If the DOJ ever comes knocking you can demonstrate your adherence to the suggestions put forth in the Evaluation in a documented manner.

I find the confusion of Sherlock Holmes and the use of fog as a mood setter an excellent way to think about a root cause analysis. By using a root cause analysis, one can see that the popular perception of Doyle using fog as a story tool is simply not correct. Doyle has many motifs and symbols in his Holmes stories but fog is simply not one he used but a mere handful of times. Even then, in The Adventure of the Bruce-Partington Plans, fog was used only in one scene, to shroud the murderer.


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© Thomas R. Fox, 2017