If you work in-house, you have been there before.
It’s the eleventh hour before some regulation goes into effect, a merger must be signed, or a statute of limitation is about to toll.
You have spent the last week huddled with your company’s leadership team debating the various virtues of each proposed course of action, and you have diligently made the case for what you believe is the most legally sound path forward.
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But despite your plea, company leadership ultimately decides the business risk or reward is just too great for some pesky legal reason to stand in the way. You again express your position, demand your opposition go on the record (like that exists in a dim-lit boardroom), and then return to your office to pout, stare at the degrees hanging on your wall, and curse the thought that some two-bit MBA can trump your JD.
Then you power down for the day, head for the exit at 5:00 (this is in-house after all), and come back the next morning ready to start the whole process again on whatever the issue du jour may be. Such is the daily in-house gauntlet. And more often than not, that is the end of it. Whatever last week’s issue may have been is soon forgotten and never thought about again, unless something goes wrong.
Our in-house team recently ran the gauntlet with an issue we had spent months working on. We were tasked with drafting a corporate policy, shepherding it through our internal review and approval process, and ultimately submit the policy to a government entity with regulatory authority. After countless meetings, redlined drafts, and late nights (I am talking at least 5:45 here, remember we are in-house), our policy was ready for the board’s final approval. Who, in their infinite wisdom, thought some of our legal suggestions placed a burden on business operations and asked that we cut several key provisions.
Despite our best efforts at protest, the provisions were removed, and the policy was submitted to the agency. Fast forward a few weeks, and to little surprise of the in-house team, we received a request for additional information on a few areas of our policy. And as you might have guessed, they were the areas that had previously been removed for business, not legal, considerations.
Unfortunately for the in-house team, a few weeks in the business world might as well have been a few years, and our board had long forgotten they had ever made such a recommendation.
Which leads me to one of the most common, but vexing, problems to any in-house operation: how can you artfully rub your executives’ noses in their mistakes without falling out of their favor?
On the one hand, we wanted to scream from the rooftops that we had gotten it right the first time. A JD really is better than an MBA as we had said all along.
On the other, we needed the board to seek our counsel in the future, and better that they accept even half of what we recommended than none at all. Plus we quickly had to get to work sorting out their error and respond to the agency. Running around saying “I told you so” would only have made us feel avenged without actually helping our company.
Fortunately for our in-house team, we had previously drafted memos on the provisions they initially asked us to remove months ago. While this allowed us to come up with quick answers, we had the added benefit of redistributing them to members of the board. And judging by the speed at which they adopted our recommended corrections, it seemed quite obvious we had successfully refreshed their memories of our original position.
Seemingly minor and petty behavior? Perhaps, but in the in-house world, no executive is ever going to hunt you down to say they were wrong and you had been right all along. Their job is to keep the business afloat, while yours is to help them avoid any legal and regulatory hurdles along the way. Instead, in as artful and pleasant way as possible, prove your value when given the chance.
Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at [email protected].