THE POWER OF “YES, IF”
Inhouse lawyers get a bad rap in many companies when
honoring their dual mandates of guardian of the client’s legal interests
and partner
to the business leaders who strive to take the client higher and farther. When disparaging the legal department as “the
Department of ‘No’,” the business departments are expressing their frustrations
as well as their ignorance of each lawyer’s divided duties to internal and
external powers.
Who else in a typical company has a professional license
that is subject to revocation by an outside authority for violating ethical
obligations to their own employer, even if that employer requests the action? Medical and other licensed professionals are
subject to professional rules, but none of those bodies attempts to regulate
the way they represent their employer’s interests on a daily level. Far from simply ensuring that someone doesn’t
commit a crime, the ethical rules that come with a law license mandate that inhouse
lawyers owe allegiance to the organization
that may conflict with the interests of other employees of that organization.[i]
Inhouse lawyers tend to be defensive when faced with such
criticism, but that cedes power to the critics.
There is a better option.
Balance of Power
In typical interpersonal relationships, there are several
sources of power. One or another person
may be perceived as more powerful than the others due to their expertise,
special access to information, ability to reward, ability to punish, emotional
connection or simply their title.
When a business leader seeks approval for something by the
legal department, they generally view the lawyer as having special expertise
but often also the ability to “punish” by withholding that approval or
reporting risky proposals. Hence, the attempt
to label legal departments as “the Department of No,” so often given to IT
departments. And, since power tends to
corrupt,[ii]
and a solid “no” is faster and easier than most other answers, inhouse lawyers
have too often earned and validated that label.
Some might even say it is more laziness than guardianship,
but the result is that the lawyer exercises the authority and the
representative of the client resents it.
Breaking Free
These days, when a business leader encounters a “no,” their
training and experience activate problem-solving skills to find ways to turn
the “no” into a “yes.” Books have been
written and many sales and leadership courses taught on this subject. When Legal says “no,” some take that as a
challenge and the first part of that response is to ask for reasons. “Why not?” seeks a list of targets that, if
eliminated, can flip the answer. That
turns into “No, because,” followed by a list of reasons and justifications,
maintaining the power in the lawyer. “No”
is just a step in the dance toward getting a deal for skilled sales and
marketing people. Getting a list of the
obstacles is a way to recover some of that power.
“No, because” is an admonition as well as an invitation to
argue. It requires the lawyer to provide
the list—the whole list—of the component problems with the proposal. The implied message is, “fix all of these,
and the red light changes to green.” The
requester expects an automatic yes if all of the stated reasons are resolved. But that takes time and effort, and busy
professionals have other priorities.
Rather than spend time and effort on that type of
negotiation, a lot of staff look instead for ways to avoid having to ask
permission or for alternative means of getting the clearance they want for
their proposals. “Better to ask for
forgiveness, they say!” After all, their
bonus (or job) could be at stake and completing the proposed activity is one
way to save it; consequences, if any, won’t happen until much later.
The outcomes can be more problematic to clean up and rectify
if something goes wrong, of course, but by then, the deal is done and it may be
a long time down the road.
A Rebalancing Act
There is another option that resets the balance of power in
a positive way, furthers the organization’s interests of growth and success,
and still honors the lawyer’s obligations to ensure that growth comes with
reasonable security. An option that
side-steps the potential for abuse of power and actually pursues both of the
lawyer’s duties.
That is what “Yes,
if” is all about.
“Yes, if”[iii]
is the opposite approach to “No, because.”
It looks very similar and, to a degree, like a simple change of
semantics to find a nicer way to say no.
It is much more than that.
“Yes, if” builds where “No, because” tears down. “Yes, if” engages, where “No, because”
disengages. “Yes, if” seeks
collaboration and equality, where “No, because” strives to preserve an
imbalance of power.
Yes, if” communicates “we’re going to work on this
together.” “No, because” tells the other
person, “you need to figure it out.”
Using the Power of Yes
Legal departments should use “Yes, if” whenever humanly
possible. The lawyer still has to do his
or her homework; the lawyer’s role of guardian is still intact. There may still be a list of challenges to resolve
before the light will turn green. “Yes,
if” works to bolster the other role—that of partner or trusted advisor—without
reducing the protector role.
The magic power in “Yes, if” is rooted in the psychological
impact of hearing “yes” combined with the invitation to join in solving the
problem. It also proclaims: “you and your proposal are important, and I
am trying to help.”
“Yes, we can get that permit, if _______” engages the other
person in understanding and addressing the specific gaps that are needed.
“Yes, you can license that IP, if _______” motivates the
other person to activate their own network or locate resources that are needed.
“Yes, that contract can be finished this week, if ________”
assures the requestor that you see and hear them, appreciate their business
challenges, and value the relationship.
The part that follows each “Yes, if” is where the
requester’s energies can now be directed, whether it is sending in additional
information, making some phone calls, setting up a meeting, or other essential
tasks. The requester now knows how it
all fits together and what their role is in the process toward success.
Yes, if…but
No approach is perfect for all situations. There are still going to be times when a
sincere “no” is better. You could take a
pure “yes, if” approach and make your list include one or more absolutely
unachievable obstacles. “Yes, if we can
turn off the Earth’s gravity,” or “Yes, if there are 14 days added to the
calendar this month,” make the exercise a joke.
Honesty is essential to the trusted advisor role, as is mutual
respect. Give the respect you want to
receive.
But if you can couch your answer in “Yes, if” terms with a
list of conditions that are reasonable, even if difficult, and maintain an
attitude of collaborative problem solver, you will see your department’s
reputation evolve from “Department of No” to “Trusted Legal Advisor” without
engaging in or encouraging activities that increase risk to your client, the
organization.
[i]
Much has been written about this tension.
See, e.g., Michael W. Peregrine’s Jan. 8, 2015, post “Reclaiming the
General Counsel’s Role as Advisor on Organizational Ethics,” on The CLS Blue
Sky Blog (http://clsbluesky.law.columbia.edu/2015/01/08/reclaiming-the-general-counsels-role-as-advisor-on-organizational-ethics/)
and Ben W. Heineman, Jr.’s article in the April 2007 issue of Corporate Counsel.
[ii]
From a statement attributed to Lord Acton in 1887.
[iii]
This management tool is often attributed to Harrison “Buzz” Price, who was part
of Walt Disney’s dream team credited with revolutionizing the theme park
industry.
