The creative side of law
Using legal education to enhance company performance (with source of law reference)
In the coming days, I will be embarking on a new role. One that I’ve wanted to try since I realized it was an actual job that people do. No, I am not joining Nine Inch Nails or the GoGos, or traveling back in time to own a record store in 1987. Instead, it is a more realistic pursuit, inspired by great professors in my own education, and even movies like Dead Poets Society, Good Will Hunting, Paper Chase, and of course, Legally Blonde. Grab your nubby wool cardigan with elbow patches because I have my first full class as a university professor. The class itself is perfect for me, as it marries my three favorite topics: entrepreneurship, business, and law.
For the next several weeks, I am going to share some of the content I am developing for that class here on PrepOverCoffee. Hopefully, for those who have never had a business law class, it gives you a leg up in your professional lives.
For those who are lawyers, I hope it inspires you to teach a non-lawyer about concepts that can help them be more effective. The “golden ticket”1 to being invited to the table early and often stems from teaching your peers within the organization (1) an awareness of the complexity of the laws that impact their work, and (2) the ability to spot potential hurdles or violations. More on this later.
Speaking of children’s movies, I recently saw that they are remaking the Little Mermaid, and my heart filled with pain. Pain that has only been surpassed by not having a working internet for several days.2 Anyway, when the first Mermaid came out in 1989, I could not understand why everyone loved a movie about how a girl has to change nearly everything about herself, including GIVING UP HER VOICE, to get a man. My faith was restored a few years later by Beauty and the Beast, where another girl, this one who was raised on books, creativity, and ingenuity, fights an evil monster to save her dad and the community that she lives in.
And I was thinking…
Law is a lot like Belle (aka Beauty), and our society is the Beast. Hear me out. Humans are constantly challenged by their resentment, biases, bad choices, anger at certain situations, and sometimes, unfortunately, the need to make others feel bad because we feel bad. However, inside this Beast is a heart of gold. And the law is this beautiful, thoughtful, brave, and creative thing that will save us from the worst parts of ourselves, appealing to and ultimately protecting the goodness that lives inside us all.
There may be something there that wasn’t there before
The law is always changing, and it is pretty ambiguous, even when it’s static. If the law were black and white, there would likely never be any litigation. New legislation, and even administrative rules and agencies, are created all the time.3 Case law expands and contracts the law, as courts determine what the law really “means” and “does not mean,” and what types of situations can be defenses to something that would otherwise fall under the scope of what the law seeks to enforce. Even after the courts are done with their interpretations, sometimes Congress decides they don’t like the ruling, and in turn redrafts the law to reflect their intent, restarting the litigation process all over again.
As an example, in the Constitution, the First Amendment says simply “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” After this was enacted, the courts spent the next several hundred years (and counting) interpreting and defining what it actually means.
But where does law come from anyway?
Here’s a helpful resource that I put together to simplify the legal structure for business colleagues.
In clickable pdf here for reference:
And of course, there is the classic Schoolhouse Rock video.
In business, and in life, no one will ever know every law that exists, or the current interpretation of the law. The most important thing is knowing where to look, how to verify that you have the most current information, and how to get a good feel for the rules that apply to your particular set of circumstances and business.
The law that applies to you may depend on things like:
where you live,
where your business operates, as well as where it provides products and services,
the industry you work in, and the level of administrative oversight (for example, insurance is a highly regulated industry governed at the state (through state departments of insurance) and federal level (through applicable financial, security and other federal requirements),
the particular practices you use to grow, deliver, and administer your business,
the number of employees you have (various employment laws apply at different employee thresholds ), and
sometimes even the politics of the day.
In most companies, employees aren’t expected to be legal experts. However, a solid foundation of the issues that can affect the business are critical to ensure that legal experts are engaged when needed.
“You’re alone and you’re scared, but the banquet’s all prepared…be our guest”
Just like Mrs. Potts sings in Beauty and the Beast, “tale as old as time, song as old as rhyme,” the number one complaint I hear from my legal colleagues and friends is “I’m not at the table,” or “legal needs to be at the table sooner.” That must be some dinner party that no one “in house” is getting invited to.
What can legal do to be invited to the table?
The best lawyers are focused on relationship, with some recognizing that they need to avoid being branded as the “no police.” However, being likeable or even respected isn’t enough to be invited “to the table.” Saying words like “I am not the no police” are hollow until you prove that you can back them up with creative solutions and insights that help the entire team improve.
Beyond telling, it takes showing internal clients your value. It takes adopting a “yes, and…” approach (improv anyone?) when possible. “Yes, and as we move in that direction, we will need to figure out how to address x, y, and z. Here are some ideas I have that should save us a lot of time and money.” The more this “creative advising” happens, the more involved the legal team can be up front – even when they have to say “no” from time to time.
More Importantly: Legal education enhances the environment for everyone, and is the golden ticket to the proverbial “table”
Most of the time, I don’t believe in house lawyers are being purposefully excluded. Business counterparts aren’t “choosing” to exclude their friends from legal. I don’t even think it’s because people think the legal team might say no to something. The bigger issue is that most business people don’t see the question that would lead to a “no.” Why? Because companies tend to leave it to legal alone to spot the potential hurdles and issues, instead of training everyone to do so. Most companies spend a lot of time and money training their employees about discrimination, harassment, internal policies, security, and even the core business. And don’t get me wrong, these things are critical. But I believe what businesses also need to spend their time on is teaching employees at every level of the organization the legal context they operate in, and how to spot issues and make them known in time (preferably as soon as possible) to invite the people who can help resolve or avoid them. Legal issues are not wine, and they do not get better with age.
A perfect world to me is one where every level of the organization has the training to say things like, “I want to roll out this new product. For it to be profitable, I need to have pretty fast adoption rates, so maybe I could incent people to try it somehow. I don’t know the laws in every state that might impact my ability to say what I want to say, or do what I want to do, but I remember that training where we learned that certain rewards or incentives have special rules. I should call someone who can help me figure this out and work with us to make this happen as quickly as possible.”
Law is a creative pursuit
In my opinion, law is a profession very much like art. The fallacy that the law is fixed and can suffocate creativity is also what can cause lawyers to find other professions. They lose touch of the magic of law. The storytelling required. The need to synthesize a variety of ideas and make them applicable to a novel situation. The understanding that each law is like a Lego, and how they assemble them will determine the often amazing, but still painful when you step on it, result.
And this creative edge is where legal education can be a valuable tool in a company’s learning and development toolbox. By learning to research for context, think critically, assemble unique answers to the “answerless” question, and communicate complex ideas simply, organizations can build transferrable skillsets, strong compliance, an even stronger culture, and more profitable results.
So, join me as I attempt to create that foundation for this community, and stay tuned for things like: How Boards Operate and Scale (and Why They Exist), Specificity Lessons from Meeting of the Minds, Dispute Resolution: Choosing the Best Path, intellectual property in a world of NFTs and Chat GPT created content, appropriation in the metaverse, and a whole lot more.
And Happy New Year!
The Federal Communications Commission, an administrative agency created by the federal government in 1934, oversees internet and cable providers. They are not my favorite administrative agency at this moment. Also, we have determined that I would not have survived in the Little House on the Prairie.
A fellow professor shared this video with me, illustrating how the administrative code has grown exponentially in the past decades. It’s weirdly engrossing, and also terrifying.