How to (not) use your (Ad)lawyer!

At a recent conference in the US I have been asked to address an audience of advertisers and agency people about how to most efficiently use their legal consultants. After some thorough thinking, I felt that sharing a number of problems I have faced during my +25 years spent as a consultant to Adland practitioners might be of interest to the people in the room. Here is what I have shared with the floor.

As a lawyer working for the advertising industry you get all kinds of (weird) questions.

Let's - hypothetically - assume that one of your clients comes up with the following request: "Can you draft me a PLR transfer contract (for those not entirely familiar with acronyms = Private Label Rights contract to license digital products allowing to modify, reuse or resell them) specifically meant to consider a MFA (MadeForAdsense) website (we may decide to use WSO (Warrior Special Offer)? And, btw, we would also need your advice on how to address the SAR (data, Subject Access Request) process in the context of data handled through RPA (Robotic Process Automation, i.e. a software to automate high volume, repeatable processes through machine learning)."

A presenter's must: trying to involve the audience.

When you go for being interactive with an audience, make sure that you pretty much know the answers to your questions in advance (to avoid highly embarrassing situations). Hence, when I asked the attendees "How many of you could handle such a request?", I was quite sure that nobody would raise a hand. So, I went on to comfort them by admitting "Nobody? Don’t worry, nor could I."    

The sense of my intro: highlightening the power and the risks of 'jargonese'.

Dropping ‘jargonese’ and buzzwords is not always easy. Some of them, we are so fond of that we struggle to do without them. How could we possibly cut out of our daily language expressions/buzz phrases such as: “Omnichannel“ “Open the kimono” “Blockchain technology” “Red teaming” “Get the ducks in a row“ “Blue sky thinking” “Ideas shower”, etc.

Well, yes, sometimes this language may be useful, capable of taking away tension from a meeting or of delivering a better idea of a concept. But sometimes this jargon is just bewildering, confusing or alienating and not helpful at all. Staff in the marketing and advertising department of an advertiser or an agency know their jargon. ‘Code Speaking’ is an easy trap to fall into
(lawyers used to do it all the time). However, in the ad industry, a lawyer is part of the context, sure, and he will understand some of your in-house language, but way less than you assume.
 So, if you bombard him with your beloved acronyms and desk slang, he – being a (slick) lawyer, knowing how to sell his/her image – will look interested, informed and understanding, while he/she has no clue what you are talking about. So, he/she will need to find out spying around, without conveying the impression that she/he’s not familiar with your shop language and your industry specific problems.

Addressing your consultants with 'jargonese', a wise approach?

Now, do you think this is a good starting position for someone you call on to prevent or to fix critical situations? Obviously, it is not the best way for addressing and handling the problems you are concerned about. Speaking ‘ABOVE’ your consultant’s understanding will make him/her feel uncomfortable. On such basis, rationalizing your problem and proposing carefully thought through solutions or strategies will be more a matter of luck than of professional skill. Never underestimate the emotional aspect of a conversation.
Therefore, you will want to make sure that your ‘problem fixer/preventer’ understands both, the issues you are facing as well as all the potential (sometimes extremely technical) implications of them. How do you achieve this? What’s the most suitable way to provide your lawyer with the relevant input he/she needs to perform at his/her best? How can you be certain that he/she perceives your information correctly?

The best approach (in my opinion):

Talking to the lawyer in terms you would use when explaining a problem to a nine years old kid. Only, if the lawyer is really into capturing ALL aspects of the problem, only if he gets in full extent why a certain issue results in a ‘problem’ to you and your business, only if he is familiar with the underlying technical implications, he/she will be able to provide you with valuable advice or to successfully argue your position in front of a Court or a Regulator.

An exaggeration?

You probably perceive my recommendation of using language understandable by nine years old as an exaggeration. Unfortunately, it is not. Just consider that one of the most important things your lawyer will have to do, is ‘transferring effectively’ to a Court or Regulator the problem you are concerned about (together with its ‘technicalities’ and its business specific implications).
Be aware that to perform this task successfully your lawyer will need to use an extremely accessible language.  

So, you better bear in mind:

If a judge or regulator does not understand what your lawyer is saying, he won’t think of himself that he is stupid. Most likely, he will think that he is being told crap, not worthwhile to consider.

The take I offered my audience:

“Dejargonize! Dejargonize! Dejargonize!” Ditch the shop slang or geek language. Start speaking plainly. Make sure your consultant feels comfortable with asking you questions.
Meet for a final briefing to make sure that all angles of your problem have been properly covered.