At the same time, one of the core competencies of an in-house lawyer is to deliver accurate, timely and effective messages – and, of course, from time to time those messages will need to be negative.
The circumstances in which you may need to convey a negative message are many and varied. They may relate purely to legal advice, but in-house they will frequently involve your organisation’s internal and external position. Some of the more frequent circumstances include:
· Advising colleagues about a legal analysis which does not support the outcome they would prefer;
· Reporting the outcome of litigation or other legal process which goes against the organisation;
· Drafting messaging or correspondence to use with customers or clients;
· Preparing media releases, or responses to enquiries from the media;
· Writing letters responding to third parties such as MPs, local politicians, lobbyists and pressure groups;
· Dealing with staff, employee or contractor issues.
Who, what, why, when, where and how?
Journalists and project planners are taught to use the so-called 5W1H model to consider the ‘who, what, why, when, where and how’ of a problem. The in-house lawyer can use the same model to frame the message, and to consider the way it is delivered.
Who - who is the audience for your message? Is it one person or many? Is the audience internal to your organisation, external, or both? Why do they need to hear it, and what do you want them to do about it? The answers to these questions are important and will guide your thinking. The way in which you present the message to your Chief Executive or Board will be different to the way it is offered to an external audience, to the organisation’s staff, or the press. Put yourself in their place – what would you need or expect to hear?
What - negatives, positives, and neutrals. There is one common factor in all negative messaging: the recipient can be expected not to like the message being given. They may feel it is wrong. They may feel the way in which it has been communicated is not appropriate. They may think the timing is poor, that the implications have been ignored, or that you personally are in some way disrespecting them.
This brings with it the danger of a disproportionate or unpredictable response, which you must consider. Where communications go beyond the realm of pure legal advice, you may well wish to bring in specialist media or communications advisers.
You will also want to consider the other implications of the message. Is it wholly negative, or can you bring out some neutral or positive elements? And if the message is wholly negative, are there things which can be done to learn from the issue? What is the organisation doing in response? It may well be essential to convey a negative message. However, if it is possible to draw a positive or neutral consequence, then it may be that the negative message can at least be framed in such a more proactive way. If the reader can be told that the problem has now been understood and will not be repeated, or that the organisation regrets the inconvenience which has been caused and is keen to make amends, the message may start to build confidence for the future.
Why (1) - the messaging. You know the message is negative, but what exactly is the message you want to be heard? The natural human response is to hear what we want to hear, or what we are expecting to hear, which may well not be what you want.
You will want to ensure your message is clear and concise, and that you are transparent on the outcome you seek to achieve. You may want to contextualise and to reinforce it. You can begin by summarising the context and explaining the background, before conveying the negative news – and if necessary, dealing with related issues to avoid people being confused, or left with obvious questions. Finally, you may want to consider whether it is possible to end with some degree of positivity so the recipient leaves with at least some element of warmth towards you or the organisation.
Bearing in mind that the message will be unwelcome, are there ways in which you can manage the anxiety which people will feel? Can you maintain your organisation’s reputation – and your own – in delivering the message? If it affects customers or clients, can they be reassured in some way? Do you need to consider whether the message may impact the organisation’s legal liability, or even criminal responsibility at law?
Why (2) - the outcomes. You know the message will not be well-received, but what outcome do you expect – and is it the best outcome you can achieve? Should your message be delivered and left to land with the recipient, or do you want to provoke or encourage immediate discussion and debate?
It may be that the message needs the reader to take action. If it is formal legal advice, it may seek the organisation’s approval to the next steps – or to give instructions that a particular course of action should change. If it is an external announcement, it may require the audience to obtain further information, or to contact the organisation, or return a product. Be clear what is needed.
Do you expect the message to raise particular questions? Think about whether you should deal with them as part of the original message – together with their answers? Perhaps a formal frequently asked questions (FAQ) document is appropriate?
Does your message go too far or include too much detail to achieve the outcome you seek? For example, if about speaking to a member of staff about a performance issue, will a detailed run-down of their faults and failings achieve an improvement in performance, or make the situation worse?
When. When a message is delivered is often as important as the content. An in-house lawyer advising senior members of the organisation must not take them by surprise. They should hear the news from you and not from another source. You may need to prepare them for bad news, and put it in context for them. A message for external audiences should communicate your organisation’s position before the media or other stakeholders begin to speculate or issue conflicting messaging.
Where. The ‘where’ may perhaps be the least controllable of the elements of messaging. If you need to brief senior colleagues, they may not be easily accessible in an office – but you should to try to ensure location does not impede the message, or prevent it being properly understood. You may have to deliver bad news over a conference call or video link, but if it is impeded by the line breaking up or by someone being unable to hear and interrupting its delivery, things will not go well. Do what you can to ensure the message can be clearly understood and the recipients have a chance to talk to you about it – that may mean scheduling a call rather than holding it immediately with people joining mid-way through, and using a telephone conference rather than a video link. You may also want to give senior colleagues a ‘heads-up’ first, or to follow up immediately with a personal call.
How - options to deliver the message. Often you may think that the message needs to be delivered as soon as possible, by whatever route is available. But is that really the case – and if it is, what is the best route and methodology?
- Verbal, in person. Messages which are critical to the organisation, or to the person concerned, are often best delivered in person. You know what you want to say and what outcome is sought, and you can see the reaction of the recipient and manage their reaction. You can have more detail in reserve, or a written summary to leave with them. You also have the chance to move the conversation from the purely negative news to a discussion about recovering the position. For the in-house lawyer, delivering bad news to your Chief Executive or your key operational clients is best done in person. Staff issues are also, of course, best dealt with one-to-one in person.
- In writing, or by email. Messaging in writing has the advantage that it is permanent, can be re-read, and can be examined and questioned – but bear in mind that your document, emails or texts will be accessible in any subsequent litigation or regulatory investigation and you may well be called to explain what you meant.
- By formal announcement. As an in-house lawyer, you may well be required to draft a formal announcement for public issue. Such an announcement is likely to be subject to significant external scrutiny and may be subject to formal regulatory requirements – more of which below.
- Print or broadcast media. The legal and communications spheres will frequently interact, and statements made to the media will need legal scrutiny and approval. In many cases, where media interest is engaged, the circumstances will be difficult, the message which needs to be given will need to be negative and it is likely to be challenged live on air, and will need to be balanced against the legal position.
- Social media. Most organisations will use a variety of forms of social media to communicate with their customers and stakeholders. Social media messaging may well need to be different to that in a formal announcement to allow it to be quickly understood and processed by the audience concerned. You may need the audience to take action – for example if it relates to a product recall – and will need to signpost readers to the next steps.
Who should front media interviews and announcements? Who should be the organisation’s spokesperson, how should they present the message, and how should they respond to questions? This has the potential to go badly wrong very easily. They will need to be fully prepared with agreed answers to likely questions, and aware of the dangers of moving away from the prepared script. From time to time, it may be suggested that the senior in-house lawyer is the right person to front media interviews. You might well wish to think carefully about this. While there can be circumstances where the lawyer is the right spokesperson for the organisation, those circumstances are likely to be limited.
Meeting regulatory requirements. Many organisations will be regulated in one form or another, and those regulatory requirements will often bring with them the obligation to report negative news – usually in a timely fashion. Listed organisations will almost certainly require advice from their brokers and financial advisers, as well as external lawyers.
Avoiding own goals. Inevitably, things can go wrong. Think about whether others may interpret your message differently. Will they see incompetence rather than fact, error rather than act of God, arrogance rather than confidence? Is the person who will deliver an external message at the right level (and are they used to media questions)? And if you have said you will do something at a particular time – such as give a staff briefing or a press conference – do make sure you begin it at that time. Not to do so will be poorly received and will lead to speculation.
Reputation and relationships. Negative messages are inevitably a risk to reputation and relationships – but ironically also an opportunity to make them stronger.
· Legal as a blocker – how to confront the perception provides insight into situations in which giving negative messages may be misread as legal becoming a block to progress.
· Dealing with tough negotiations provides some tips and tools when you are involved in hard negotiations.
Do I make myself clear? Why writing well matters Harold Evans, Little Brown (2017)