WHAT WE THINK ABOUT WHAT YOU THINK ABOUT.
We once worked with a client who affectionately referred to their legal department as “the sales prevention department.” They had a highly empowered legal department. And the lawyers, being lawyers, were very good at anticipating possible litigation risks and recommending ways to avoid those risks. What the marketing team found frustrating (and what the lawyers didn’t care about, because they got their bonuses anyway) was that the advice of the legal department almost always amounted to…don’t do marketing.
From a risk avoidance, litigation prevention perspective it makes perfect sense. If you don’t make any promises on behalf of your product, then you can’t be sued for products that don’t meet expectations—because you have not created any expectations. If you don’t make any promotional offers, then you don’t have to worry about scammers and schemers trying to skirt the rules in order to get a better deal than you intended to offer. And, if you never distribute the product, nobody will ever have a mishap in using the product. No chance of a product liability issue.
Problem is, no market no money.
We’ve had some clients who were very assertive in dealing with legal on behalf of marketing. Others have seen legal as those who must be obeyed. Almost without fail, the ones who have pushed back have gotten better results—both marketing and legal. Here’s why:
1. The more legal type you have, the less your prospect trusts you. Product and compliance people are trained to anticipate every possible problem and find a way to cover it. Given enough time and enough latitude, they can write a book about what could go wrong with any product, claim, or promotional offer. We once worked with a client for whom the legal copy was always two or three times the length of the actual advertising copy.
Of course, the real problem was not even what the legal copy said. It could say, “whatever the marketing people have promised you, we in the legal department will double it,” and it wouldn’t matter. No matter what the actual content of the disclaimer, what the consumer hears is—
“This ad doesn’t really mean what it says; you can’t trust this company to make a simple offer and stick to it; this company talks out of both sides of its mouth; and even if it is a good offer, you probably don’t qualify.”
Does this mean you can’t disclaim your copy? Of course not. But rather than creating the brief, developing the copy and then creating a disclaimer that amounts to a cross examination of the entire premise, build the disclaimer information into the copy brief and then write the disclaimers into the ad copy, within the tone of the ad. Things like, “if you’re credit is good, you pay your bills, and your home is worth more than you owe on it, you might…” Suddenly, what needs to go into the little legal block is one or two short statements, member FDIC, and Equal Housing Lender, and you’re done. You make sales. Your protected.
2. The marketing opinion of a lawyer is worth about as much as the legal opinion of a marketer. Lawyers are smart, educated, curious people. They have opinions about all sorts of things. The Cubs and White Sox. Dress shoes with no socks. Kids today. Correct word choices. Whether anyone would be interested in your promotional offer. What might make a better promotional offer. All of which is nice. None of which is what your company pays the legal cats to render opinions about.
We have a good friend, a marketing guy who has worked with some very large global brands. He once had a meeting with some Coca-Cola lawyers about a joint venture he was designing. The lawyers were very active in making suggestions about improving the promotion. Our friend wrote down all the suggestions and comments, listened very closely, and finally put the list of comments onto the table and said, “now, of these points you made, which are legal suggestions and which are marketing suggestions?”
When your lawyer starts rendering opinions about things that are in your field of expertise, they’re probably distinguishing in their own minds between their legal opinions (for which they are highly-qualified professionals) and their marketing opinions (for which they are pretty smart people, playing at your job). But they may be speaking with the authority of an expert on both. If you don’t distinguish between the two (and help them to do so), you may have lawyers dictating your ad copy for no good legal reason.
3. Once you’ve established a good rapport, lawyers can help you craft offers that will deftly navigate regulations. A great example is a bank client whose lawyers declared, across the board, “we can’t offer anything for FREE anymore.” No FREE checking. No FREE steak knives. No FREE parking! Our client had a really good relationship with the legal folks, so they had a coffee meeting.
Together, they actually looked at the law—how it was written, how the legal precedents were written, what was actually proscribed and prescribed. They came up with a system of “no fee,” “fee waived,” “fees will be refunded,” “no charge to you,” “complementary,” “we’ll pick up the charges…” that actually said FREE in many, many ways that actually added value to many of the offers. Suddenly, what used to be free was being purchased and given to customers by the company…as a token of appreciation!
Lawyers are smart. Their charge is to head off risk at every turn. But they are inherently strategic. A strong relationship between marketing and legal can leverage that. You help them do what they do. They help you find ways to do what you do.
Superficially, marketing and legal appear to have mutually exclusive objectives. Legal is charged with reducing risk. Marketing is charged with making sales, which inherently involves taking calculated risks. But while they appear to be contradictory, both succeed only when the company succeeds.
Standing up for yourself in dealing with them (and expecting them to stand up for themselves) will create a relationship of mutual respect. Eventually, they will learn that you are not dumb or random. Eventually you will learn that they are not stuffy, boring, or rigid.
What you know how to do is necessary for the success of the company. But they know things that can help you. Until you’ve cultivated the relationship, their default position is likely to be “NO.” So, you have to be respectful, firm, and smart. And you have to push back.