Editor’s Note: This is a chapter excerpted from Jennifer Maher’s new book, Nonprofit Nonsense (purchase the book here on this Amazon Affiliate link). Join us for a January webinar led by Jennifer Maher for more on this topic!
CHAPTER 13 : LEGAL WOES AND NOES
I’ve often heard the legal department referred to as “the place where dreams go to die.”
I’m a marketer. It’s a lawyer’s job to curb my enthusiasm, ensure my out-of-the-box, push the envelope thinking doesn’t send us over the cliff. They’ve got their job to do, and I’ve got mine. We’re on the same team, but we often feel juxtaposed. Why is it the general counsel’s office gives me flashbacks to grade school, sitting in the principal’s office, feeling vulnerable, helpless, and five seconds away from having my mother called?
I’ve officially earned my honorary law degree. Not because I went to law school, but because I have spent most of my twenty year career visiting the legal department and learning more than I ever wanted to know about nonprofit, promotional law and accounting, unrelated business income tax (UBIT), commercial co-venture registration (CCV), qualified sponsorship payments, substantial return benefit, charitable solicitation registration, variance power, easy-out clauses, indemnification, disclosure language, licensing of the Marks…(Are you snoring yet?).
When legal folks talk, most people’s eyes roll back. They’re speaking a foreign language, as are their cousins in IT. As with many foreign languages, the meaning of a word can change simply by adjusting the tone or one letter. So it is with lawyers.
“Can I cross the road?”
“Can I cross the driveway?”
“Can I cross the sidewalk?”
“Why the sidewalk?”
I shake my head, wondering why he didn’t just suggest that I cross the sidewalk instead of the road when I first asked. I’m trying to get somewhere. Help me figure out how to get there.
Most lawyers don’t offer up alternatives. I’m convinced law school trains them this way. After all, in a court of law when asked, “Did a man in a red and white hat attack you?” The answer is simply “No.” It’s not “No, he wore a red and blue hat.” It’s “no”—period—because when a portion of the statement is inaccurate, the entire statement is thereby negated. They learn to answer the question asked. No more, no less. Don’t elaborate.
“Can we do a contest?”
“Can we do a sweepstakes?”
Go figure. Sweepstakes, contest—whatever. To me, they’re basically the same, and either will accomplish my marketing goal. But to a lawyer, it’s two totally different legal questions. Yet, if I didn’t swap words and ask again, the campaign may have been thwarted. This is why many in corporate relations quip that legal is the department of sales suppression.
I can understand it may be unethical for an attorney to brainstorm loopholes or sneaky ways to circumvent the system—but offering up legal counsel on how to word, structure or position something so that it does work should be the role of a general counsel.
Think about it this way: if a surgical resident asks the lead surgeon, “I cut this artery, right?” and receives the response of “no” and the resident clearly doesn’t know which artery to cut…how long would you let the patient lie on the table waiting for the resident to come up with the right question? Pretty soon you’d use the teaching moment to teach the correct procedure.
Most employees don’t know the right questions to ask, are unfamiliar with possible variations, or are simply using layman’s terms. Certainly, most aren’t assertive enough to persistently drill the general counsel with alternatives until a “yes” is achieved. Attorneys are intimidating. They’re the scary legal people who always win an argument, and definitely have more clout with the CEO than you do. Few people want to take ‘em on…so they accept the “no” as defeat of the idea. And that’s when dreams die.
Learning how lawyers think has helped me be successful and enjoy camaraderie with legal teams throughout my career. Positive persistence is not an effort to wear ‘em down or bug them until they cave. (Attorneys don’t cave.) Instead, it’s realizing that I am the one who must offer alternative language, different structures, various scenarios until I achieve my goal while still protecting the organization.
When you uncover what works for legal, you’ve established precedent. Make a “note to self” and apply it next time to take the easy route.
NOTE TO SELF: Know that “no” doesn’t always mean “no”; it means you can’t do it THAT way.