In-House Counsel

Making Debate Meaningless

Why is it that, for many corporate decisions, open debate is considered to be a sin?

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dartboard pen inside straightI like debate.

Shall we sue in New York or Delaware?

New York has some advantages. But it also has some disadvantages. And Delaware plays out differently. What do you think?

Shall we move for JNOV or a new trial? As to some defendants or all? Maybe JNOV as to some and a new trial as to others? What do you think?

There’s one thing I particularly like about these debates: The outcome is uncertain. You might sue in New York. But you might pick Delaware. You might pick JNOV. Or new trial. Or both. Or neither. Or some combination of the two.

When you start the debate, you don’t know what the conclusion will be.

Why is it that, for many corporate decisions, open debate is considered to be a sin?

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It’s not that corporations don’t give lip service to the idea of debate. There’s plenty of lip service: “We’ll debate today whether to make a major acquisition.”

It’s just that everyone knows in advance what the decision will be.

“We’re going to do a major acquisition. How shall we get it approved?”

“For an acquisition that big, you’ll have to socialize it. Go to the secondary decision-makers. See what they think. Bring them on board. Work your way up to the top. After all the other people are on board, go to the primary decision-maker. Bring that person on board. Then, after everything’s completely socialized, schedule your meeting. Put together a PowerPoint deck that points to only a single conclusion. Be sure to include some straw men as to why we shouldn’t do the acquisition, and then knock the straw men down. At the end of your presentation, everyone will be in favor — because they’ve already told you in advance that they’ll be in favor, and because your deck leads to only one conclusion. That’s how you get approval for a major acquisition.”

After all that preparation, the acquisition always gets approved.

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In fact, if someone were to make a presentation advocating an acquisition and get voted down, the presenter would be mortified: “Egad. I just made a presentation to a high-ranking group, and the high-ranking group disagreed with me. My career will never recover!”

I know that’s the reaction, but I ask you this: Why?

What’s wrong with full and robust debate that might end with either a yes or no answer?

Maybe I’m not thinking about this the right way. (I can hear my readers saying in chorus: “No surprises there.”)

Maybe one would say that all the disagreements get worked out in advance, in preliminary conversations, so there’s nothing left to debate at the time of the final decision.

Maybe my quibble is with titles: At the final meeting, you shouldn’t really list the agenda item as, “Decide Whether To Make Major Acquisition.” You should instead include on the agenda, “Routine Approval Of Decision To Make Acquisition That Will Proceed But First Requires Rubber-Stamp.”

That new title might insult the big decision-makers (and not look as good in later litigation), but it would make me happy.

And that’s all that matters — right?

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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