Sometimes a story will help you understand just what you
did not understand. Did you know that the Federal Bureau of Investigation (FBI)
launched a formal investigation in 1964 into the supposedly pornographic lyrics
of the song "Louie, Louie." That FBI investigation concluded that the
lyrics of "Louie Louie" were officially "Unintelligible at any speed".
While this did not quite exonerate the song in the eyes of disapproving parents,
it may have contributed to the song becoming one of the most-covered songs in
rock-and-roll history. I thought about this oddity of history when reading an
article in the most recent issue of In-House Texas, by Michael Maslanka,
Stories to Handle Client Frustration". In his article he gives stories,
as below, to use for 10 memorable scenarios of client frustration. They are
certainly just as applicable to the Chief Compliance Officer (CCO) as they are
a General Counsel (GC).
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. 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."
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
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
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.
Maslanka ends his piece by stating that "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." I would hold that the same is true for the CCO. So, as
Maslanka says, "Here's to stories. Tell one."
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