This is the fifth in a series of Client Alerts on thorny issues faced by General Counsel and Corporate Secretaries in the context of Board and Committee meetings. Previous Alerts focused on when a matter needs to be taken to the Board, the length and scope of Board and Committee minutes, Directors' use of corporate or charter aircraft to attend meetings, and who should be in the meeting room. This Alert deals with the situation in which the General Counsel or Corporate Secretary is making a presentation at a Board or Committee meeting and focuses on:
Words and Phrases To Avoid
Many General Counsel and Corporate Secretaries attend virtually all Board and Committee meetings (except, for example, executive sessions and sensitive parts of the HR Committee meeting), and so will likely have a chance to hear (and silently critique) a wide range of presentations by others. This exposure to a multitude of presentations and presentation styles should give the General Counsel or Corporate Secretary confidence that when he or she is scheduled to make a presentation he or she can draw upon this wealth of experience, avoid the mistakes of others, make a crisp, effective and efficient presentation, and receive the desired Board or Committee approval.
That, at least, is the theory. What it ignores is a series of challenges that General Counsel or Corporate Secretaries face when making presentations to the Board or a Committee. The first challenge is that most Board members are not lawyers (or, even if having graduated from law school, take particular pride in saying they have never practiced law). As a result, normal "legalese" is off limits. A second, related challenge is that some business people just don't like lawyers. It is nothing personal. That is just the way it is, and there is no way to change their minds. (A Corporate Secretary who is not a lawyer gets a pass on these first two challenges.) A third challenge is that the General Counsel's or Corporate Secretary's report is unlikely to be the high point of the meeting agenda. As such, it may relate to a regulatory or other technical requirement or other "boring" subject, and may have found its way onto the agenda only with the grudging concurrence of the CEO (see Client Alert No. 1 in this series). If the report doesn't relate to a "boring" subject, it may involve the delivery of bad news (the fourth challenge). The fifth challenge is that the report will normally appear toward the end of a lengthy agenda, placing additional pressure on the General Counsel or Corporate Secretary to enliven the report.
These challenges need to be accepted as facts of life. They cannot be eliminated. They can only be faced and, hopefully, dealt with in a positive way. There are, however, a number of words and phrases that lawyers use frequently that, unfortunately, can add to these challenges if used before the Board or a Committee. This Client Alert attempts to identify some of these words and phrases and suggest some alternate approaches.
- "Interesting" - for some inexplicable reason, lawyers love to describe legal issues as "interesting." To understand why senior officers and Directors do not react favorably to this, consider how a patient would feel if his or her doctor describes the patient's medical condition as "interesting." Patients don't want to hear that. They want to hear that the doctor has seen countless patients with the same condition and has successfully treated them all. Of course, lawyers cannot predict that every litigation matter, regulatory request, corporate transaction, etc., will have a favorable outcome, but the word "interesting" should be studiously avoided. It implies to the Directors that one is taking an academic, detached view of the matter rather than an aggressive, "can-do" approach. Directors know that outcomes can't be predicted, but they want (and deserve) to know that the General Counsel or Corporate Secretary is pursuing the matter as aggressively as possible.
- "On the one hand, on the other hand" and all variants of this phrase - This phrase is particularly annoying because it implies the lawyer cannot make up his or her mind. Sophisticated clients such as senior officers and Directors understand that most legal issues involve shades of gray; most business decisions they make do also, and yet they make the decision and move on. Before presenting a matter to the Board, the General Counsel or Corporate Secretary needs to have come to a conclusion in his or her mind as to his or her opinion on the matter. It is ok if the level of certainty as to the opinion is less than 100 percent. The Board is simply looking for his or her best judgment on the point. It is also ok to say that "others could view the matter differently" or variants of that phrase as long as the General Counsel or Corporate Secretary concludes by saying "notwithstanding what the views of others might be, my opinion on this issue is ...." A corollary of this is to resist all temptation to cite case authority (whether pro or con to your view). The Board doesn't care that the Jones case supports your view while the Smith case (possibly distinguishable) opposes it. All it wants is your opinion.
- "Complicated" - when making a presentation, a General Counsel or Corporate Secretary should avoid describing the matter as "complicated." This conveys the unintended message that the Directors (unlike the General Counsel or Corporate Secretary) are incapable of understanding the issue and will invite the retort "don't you think we can understand complex issues?" An alternative approach is to describe the matter as "technical." That will be taken to mean that the subject is a "boring" legal one (see above) as to which the Directors can have confidence that the General Counsel or Corporate Secretary have under control.
- Don't keep the Board in suspense - when making a presentation, state the conclusion or "ask" in the opening sentence or two. This will permit Board members to listen to the presentation knowing what your ultimate opinion is and/or what action you are asking them to take. Board members can then hear the presentation knowing the context in which it is being made. Otherwise, they are being asked both to hear the presentation and at the same time speculate as to the ultimate outcome or "ask."
- Admitting a mistake or changing a prior position - this is a place where no one wants to find himself or herself, but inevitably it will happen from time to time. "Beating around the bush" or waffling will only make a difficult situation worse. The mistake or change in position should be clearly acknowledged in the first sentence of the presentation. Three points need to be made - what was the mistake or change in position; how did it happen; and what changes have been put in place to ensure (to the extent anything in life can be made sure) that it won't happen again. Whatever other words are used, those three points need to be clear. The General Counsel's or Corporate Secretary's greatest asset with the Board is his or her credibility. As the cliché goes, credibility is hard to earn and incredibly easy to lose. Using words that sound like excuses or attempts to blame others will only make matters worse.
One need not be Abraham Lincoln preparing the Gettysburg Address, Franklin Roosevelt delivering a Fireside Chat or Winston Churchill addressing the people of Britain in 1940 to understand the power of words. Even in everyday business life, words have power and send important messages both about the speaker and the audience. Striving to be clear, concise and honest (and avoiding the words and phrases discussed above) are always good goals when preparing a Board or Committee presentation.