Facts don’t clarify, stories clarify. So, here are 10 scenarios of client frustration with the law and lawyers, plus 10 stories that the general counsel can use to educate, ease and explain.
No. 1: "We’re in the right. Surely, that counts for something." A California lawyer with whom I work tells clients, "I understand that you’re in the right. So is the pedestrian who always crosses on the green light and looks both ways. But he still can be flattened by an inattentive bus driver."
Like stories, analogies can do the heavy lifting of delivering bad news, thus insulating the GC from being shot as the messenger.
No. 2: "We will fight this lawsuit, no matter the cost, for as long as it takes, whatever it takes." Sometimes C-level executives imagine themselves as Winston Churchill, fighting on the beaches and the landing grounds, never surrendering.
But sooner or later it occurs to them that it’s only a lawsuit, not the fate of western civilization. They then start looking for a way out of the proverbial painted corner.
At that point, an in-house counsel can paraphrase Voltaire, who said there were only two times in his life when he went broke: when he lost a lawsuit and when he won one.
I saw this dynamic play out as a young lawyer. I heard a client’s CEO musing out loud, "I must put the company first."
Stories help clients in many different ways. Allowing them to save face is one.
No. 3: "We can’t rush this decision. We need more time to make it. Issues of integrity and ethics are at stake." A client seeks certainty, but the law provides only probabilities. This can lead clients to anguish over a decision. The wise counsel will listen for this phrase: "We could do X or Y, but isn’t that a slippery slope?" Sometimes clients say this when they don’t want to make a tough call.
The GC who needs to jostle a client toward a final answer can invoke Oscar Wilde, who famously remarked that morality, like art, requires drawing a line somewhere.
No. 4: Client at mediation: "Their opening offer is seven figures. We’re leaving." Sometimes storming out is an effective tactic, and sometimes it’s not. To show internal clients that the GC is willing to fight, without getting mired down in pointless chest-thumping and other macho displays, this story from Texas history can help.
In October 1835, relations between Texan colonists and Mexico were tense. The Mexican army marched to Gonzales to ask for the return of a cannon the citizens had borrowed to fight off attacks by Native Americans. The response was a raised flag with a blue cannon on a white background, emblazoned with "Come and take it."
For a client who is more into the classics than Texas, note that the Spartan king Leonidas first used those words.
No. 5: "We’ll look weak if we don’t fight on X issue. We can’t afford to cave in." A year or so ago, I was working with a GC, deciding whether to risk forcing the EEOC to subpoena some documents. Our arguments for not turning them over voluntarily were weak, so we decided not to take the chance. But the GC’s internal clients wanted to fight. The GC asked them this question: "Is this the hill we want to die on?"
The GC attributed this story to a grizzled non-commissioned officer in Vietnam, who asked it of an inexperienced lieutenant before the start of a battle. Packaging stories in the form of questions is effective and engaging, and engagement leads to better decisions.
No. 6: "We fired the plaintiff in a knee-jerk reaction because he is a jerk. But, we need a reason that sounds better. I don’t want to sound dumb." When in doubt, resort to the truth, counseled Mark Twain.
Why don’t people use the truth more frequently? Managers want to appear as if they always act wisely and deliberately, not emotionally and in haste. But jurors understand jerks, having certainly worked with one. Embrace truth; eschew elaboration.
No. 7: "But I was so close to the plaintiff. How could she do this to me?" I defended a case that involved a manager accused of sexual harassment. He was so upset by the allegations that he would get up in the middle of the night and re-read the complaint, trying to answer this anguished question.
Sometimes, there’s no answer to find beyond the truth of who the players are. My mother said that people never change; they only reveal themselves.
Remember the tale of the scorpion that convinced a frog to carry him across the river and then stung the frog mid-journey? When the frog asked why the scorpion would do such a thing, knowing they would both die, the scorpion replied, "I don’t know. I guess it’s just in my nature."
Individual litigants often suffer psychic damage. When counseling business leaders, a GC can use stories to help them understand their own roles in the dispute. With understanding comes healing.
No. 8: "I can’t change my position. I’ll look like a fool." Consistency is a virtue. But any virtue, taken to its extreme, becomes a millstone, not a life vest. According to U.S. Supreme Court Justice Felix Frankfurter, upon changing his mind on a legal issue, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."
No. 9: "XYZ is wrong. I’ve got to blow the whistle right now." No column about stories is complete without at least one reference to the Bible. Ecclesiastes 9:4 counsels, "For to him that is joined to all the living there is hope: for a living dog is better than a dead lion."
Yes, something may be wrong, and a time comes when a person must stand up for what is right. But, all too often, a client only will get to do so one time before facing termination and possible ostracism. So, the client needs to make it count. Ecclesiastes delivers this message better than all the bloviated advice counsel can give.
No 10: "Just tell me what to do. You’re the general counsel." The client, through the board and the C-suite team, makes decisions — not the legal department. As the Buddha told his disciples, people must be "lights unto themselves." Counsel only can advise, never direct.
Lawyers, even GCs in the biggest companies, possess zero organization-chart authority to direct those outside the legal department to do things. But, like all lawyers, they have something more powerful: moral authority. Stories help lawyers leverage that authority, because they are not lectures, which are ineffective, but reminders, which are effective. Here’s to stories. Tell one.
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