For in-house lawyers there is nothing more frustrating than hearing that carefully reasoned advice on a complex issue has been reduced to “legal says no” or “Legal blocked it”.
The answer to complex legal issues is rarely “yes” or “no”.
The real (business) world is much too complex for that. Instead, the best in-house counsel will take a problem or proposal and work with the business to figure out how the goal can be achieved, legally. This typically involves looking at alternatives and evaluating the risks involved.
How can these unproductive misunderstandings be avoided? Here are five steps that mitigate the risk of the “legal says no” outcome.
Engage. When the problem or proposal is first presented, engage your business counterpart in a conversation about how you’ll go about finding a solution. This is a critical building block for a successful overall engagement, because it frames your advice positively and immediately highlights the depth of your thinking.
Share. Building on the engagement step, connect your advice back to the process you initially outlined so that the thread of your reasoning is clear. Make sure that the takeaways are clearly and concisely expressed so that they can easily be communicated by others.
Use Consistent Terminology. Talk consistently throughout about risk and outcomes on a scale of probability, for example, ranging from very unlikely to very likely. which you use consistently. This facilitates calibration and communication.
Be in the Room. Ideally, you will be in the room when the advice is discussed so that you can correct any misunderstandings or elaborate on the spot. If there is resistance to your participation in the meeting, emphasize the productivity benefits of working together to find solutions in real time rather than setting up a further discussion after the meeting.
Circle Back. If, despite your best efforts, your advice is still being misinterpreted or mistranslated, circle back with the business colleagues for a follow up discussion to clarify. Consider including a wider group in the discussion to ensure that the team is accurately informed of your guidance.
Tension between lawyers and their business partners is not, at least in my experience, common. However, it can happen and when it does it is usually due to misunderstandings or the search for a quick answer. These tensions are unproductive and frustrating (for all) but with a consistent, thoughtful approach they can be avoided.
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