How Company Lawyers Could Better Communicate: Lessons From Corporate Policies
Published in Cahier du Juriste / Cahier van de Jurist, 2014/1, 5-10.
Overview
Company lawyers are full-time communicators. Improving communication skills can therefore have a positive impact on everything they do. Communication skills, however, include a broad range of skills: strategic thinking, writing and presentation skills, visual communication, psychology, creativity, project management and system thinking - just to name a few.
A particular area in which communication should be improved is corporate policies. For better or worse, they are now everywhere in corporate life. What will be the role of lawyers in this phenomenon? Will they limit themselves to dealing with the legal aspect of policies, such as whether the company can be held liable for failing to comply with its own policies? Or will they embrace a broader, leading role? The choice is theirs. However, if they aspire to playing a leading role beyond assessing and polishing the legal outlook of policies, they need to improve communication because, as accurate as they may be from a technical viewpoint, policies often end up failing completely due to their poor communication. Better communication on policies means deciding what is a policy and what is not, clarifying the target audiences and the desired impact of the policy, writing it in a clear, simple and concise way, using graphic communication in addition to text, embracing creative approaches to change management in addition to rule-making, adding a communication plan to each policy, giving substance to the role of the policy owner, and embedding policies into a global policy framework.
Communicating better on policies is not important just for policies. It also matters because, whenever they communicate about policies or anything else, company lawyers always communicate about themselves.
Policies: A Rising Communication Challenge
At first, it felt nice to be asked to write an article about “communication for company lawyers” on the occasion of the 20th anniversary of this journal. But shortly after starting working on it, I experienced an acute form of writer’s block. What should I actually write about?¹ Indeed, if we agree that communication – among many other interesting definitions – is “the imparting or exchanging of information by speaking, writing, or using some other medium” ², then it is clear that company lawyers are communicating all the time in everything they do: writing an email, instructing attorneys, attending a meeting, chatting with colleagues, negotiating a contract, sending a request for proposal to law firms, checking their voicemail, reporting to senior management about legal risks, posting information on the intranet, fighting for their budget, designing slides for their next presentation, feeding the database with a new contract template, leading a training session on competition law for the marketing department, etc. Is there, in the field of communication, a “theory of everything” that could be applied to all aspects of a company lawyer’s professional life and that would, in every case, deliver interesting, useful insights?
If there is one thing that I am sure of about company lawyers in the area of communication, it is that they value short, concise and, above all, practical advice. I am not sure a dissertation about the respective merits of semiotics, structuralism, communication meta-models and similar theories and models of communication would fall in that category. So, I decided to be pragmatic and to explore a concrete, specific communication challenge for many company lawyers: corporate policies.
Corporate policies are becoming an ever more prominent feature of corporate life. Some laws, such as the UK anti-bribery act, require or at least strongly encourage companies to have an anti-bribery policy. Most companies have a code of conduct that often consists in a set of general principles referring to policies for more specific rules in a variety of domains. Many companies are building up a compliance function, which results in more policies. Policies now cover most aspects of corporate life; business practices, competition, environment, data protection and privacy, insider trading, conflicts of interests, corporate governance, employment and labor relations, procurement, marketing and sales, reimbursement of expenses, diversity, security, health and safety, social media, corporate social responsibility, and so much more. Companies active on the international scene must answer daily questions from their clients (especially their clients’ procurement departments) about their policies on an ever-increasing range of issues.
Company lawyers play a central role in this phenomenon. First, they initiate many policies themselves, in particular policies linked to a legal or regulatory area (competition policy, anti-corruption and business practices policy, data protection policy, etc.). Second, they are often writing (or editing) the policies, even those not directly linked to laws or regulations and initiated by other departments of the company.
There is, however, something deeply flawed with policies. They may be perfectly crafted from a legal, technical viewpoint but, from a communication effectiveness viewpoint, they are often a complete failure: Nobody reads them, nobody knows they exist, nobody knows where to find them, and actually nobody cares, sometimes not even the “policy owner”. If the purpose of any communication is to convey a message to a recipient, let’s face the truth: most policies are poor examples of communication. What are the frequent communication mistakes that explain this failure, and most importantly, how to fix them? This is what the rest of this article is about.
1. What is a policy?
A frequent problem with policies is that there are too many of them and people get lost. An easy solution is to restrict the use of the word “policy” to a well-specified category of documents and to use other names for documents that don’t fall into it. In many companies, this would quickly and drastically reduce the number of policies.
Most lawyers are keen on “defined terms”, so what do we mean by “policy”? It looks sometimes as if any document produced by the legal department is a “policy”. I propose a very simple definition: a policy is a rule (or a set of rules) created by the company. This definition calls for three explanations.
First, it has to be a rule. There must be an element of generalization in it. “Please come to my office next Monday at 9:30” is an order, but not a rule because it applies to a particular, one-off situation. “Please come to my office every Monday at 9:30” is a rule. Any document with a scope limited to a specific situation does not deserve the name of policy.
Second, a rule is mandatory: any document limited to suggesting, proposing, recommending, or even strongly recommending, may be very useful and legitimate, but it is not a policy.
Third, the rule must be created by the company. A document consisting of a copy-paste of bits of laws and regulations should not be called a policy. For example, many companies have a “competition policy” that merely repeats what the law says and provides some explanations and examples on top of it. But it does not create any new rule. It may be a valuable educational document, but because it does not contain new rules created by the company, it should not be called a policy. ‘Legal briefing’, ‘legal update’, ‘legal alert’, ‘memorandum for business managers’ would be more appropriate, just as many other options. To be a policy, rules must be homemade and freely chosen. The policy starts where the law ends. For example, in relation to competition law, the company might decide to create specific rules for the committee in charge of setting prices. These rules aim at enhancing compliance with competition laws in the specific context of the company, but they have been created by the company itself, not by the legislator. Because of that, they deserve to be called a policy.
It is obviously justified to create educational documents to inform people about their legal obligations (there may even be a policy for creating and promoting such educational material), but these educational tools are not policies and should not be branded as ones. It just creates confusion and a useless perception of ‘policy inflation’ within the company.
By the way, laws and regulations do not need to be confirmed by the company to enter into force. They apply no matter what, and it is futile to ‘re-promulgate’ them internally in the form of a policy. For example, an “environment policy” could state that “it is the policy of the company to comply with all applicable environmental laws.” Isn’t it obvious, and therefore pointless? Could a legitimate company have as its official policy to not comply with mandatory laws? Then, what is the point of confirming the obvious?
Distinguishing genuine policies from merely informational or educational documentation allows reducing both the number and the size of policies. For instance, following that advice, a company was able to cut a 18-page competition policy down to a single page. The other 17-pages were used as a first draft to create educational material for managers.
2. Clarifying the purpose
Before writing a policy, company lawyers should be clear about what they want to achieve. Why do they want a policy? What impact do they wish it to have? The answer may seem obvious: the purpose is that the designated audience within the company (e.g., the marketing and sales officers) will read and understand the policy, and act in accordance with it. But the real purpose might be different, such as sending an implicit message to the company’s international clients: “Look! Our policies are up to international standards. You can trust us and do business with us.” In this case, assessing communication effectiveness will not depend on whether the marketing and sales officers have understood the policy. What truly matters is that procurement lawyers in other companies will feel that the policy looks like theirs. A policy may be long, over-detailed, and written in a hyper-legalistic way: marketing and sales readers would stop reading after three lines. But if the real purpose is to impress international buyers, the communication has been effective.
Another motive could be to protect the company against wrongdoings by employees. In the case of misconduct, the company has a basis to punish the employee and a defense against the regulator, the prosecutors or the media: “We have a strict policy in place and if employees do not comply with it, it is their responsibility, not ours.” Other purposes might be making a good impression on non-governmental organizations, or demonstrating to the CEO that the legal department is dynamic, etc. In each case, communication effectiveness can only be assessed within a particular context and with a particular purpose in mind. Before engaging in policy drafting, company lawyers should make it clear whom they are writing for, and for what purpose. What may seem at first glance to be ineffective communication (“The sales guys won’t understand a word of it!”) may actually be, at another level, very effective (“The lawyers in the regulator’s office like our policy.”)
Things get complicated when the policy writers pursue different purposes at the same time. The same document should be short, simple and sexy to attract the sales and marketing department’s attention, but also legally waterproof and up to international standards. Can a single document be effective for both purposes? Hardly. The solution is to develop at least two documents: a formal, legally sophisticated policy that will satisfy demanding lawyers, and a simpler, clearer, shorter and more practical version for the company’s employees.
3. Improving simplicity and clarity
If the purpose is to communicate with business colleagues or employees (rather than satisfying lawyers), then readability of the policy is a must. As a bare minimum, the text must be accessible to the intended audience. They must be able to read it (once), and to understand it. But that is not enough. It should be enticing to read. Policies need to be more than just readable to get attention. They have to stand out by their clarity and relevance. Reading a policy should be, for the intended audience, an easy, engaging, interesting, useful and - why not? - an entertaining experience (cartoons may be an excellent way of communicating a policy). Policies are competing for the reader’s attention with myriads of other documents. They have no chance to attract and retain the reader’s attention unless they have been purposefully designed to do so.
Unfortunately, many policies look like contracts: they start with loads of definitions, many of them cross-referencing, and go on with endless pages of stipulations expressed in a legalistic style totally inaccessible to laymen. It may be the usual playground for legal technicians, but it is a complete turnoff for business managers. There is not a chance they will ever read it. Here are a few suggestions to improve writing:
Give policies an informative and inspiring name. “Conflicts of Interests Policy” does not say much. “How to Avoid Conflicts of Interests” is clearer. “Environment Policy” does not say much. “Building a Carbon-Free Company” is a bit more informative and inspiring. “What Every Manager Must Know About Insider Trading” is more engaging than “Insider Trading Policy”. One tip: to make the heading more informative, add an action verb in it (“avoid conflicts of interests”); to make it inspiring, choose a verb with a positive connotation (“build” has a positive connotation; “avoid” has not).
Start the policy with a one-page summary of the key points, i.e. the most important things that the reader should know and remember. This is much more effective than starting with pages of defined terms!
Make the policy as short as possible. Put all ancillary information and details in attachments rather than in the body of the policy itself.
Avoid cross-referencing definitions at all cost. Homer has written the Iliad and the Odyssey without any single cross-definition, but the reader has no doubt as to who are Achilles, Helen of Troy, and Ulysses. It you want your policy to be a best seller, do not define Athena as ‘the Daughter (as this term is defined in Section xyz) of Zeus (as this term is defined in Section abc)’.
These are just a few examples of writing tips. There are many others. Lawyers have been trained to produce documents that are legally accurate and complete, and they excel at doing so. However, an entirely different set of skills is needed to catch and keep the attention of the readers and to convince them to act in a particular way. Technical accuracy does not, as such, entail communication effectiveness. Companies eager to progress on policy communication should educate their company lawyers and other policy writers in policy writing skills, provide policy writers with practical writing guidelines, develop highly effective templates for policies, and ensure their consistent use, or suggest to company lawyers to team up with colleagues from the communication department.
4. Using graphic and visual communication
Lawyers have been educated through texts: laws, regulations, contracts, court decisions and most articles written by legal scholars are all composed exclusively of sentences following each other. The business world, however, relies much more on graphic media: charts, diagrams, mind maps, tables and pictures. The exclusive reliance of some lawyers on linear, textual information, and their reluctance or inability to use visual communication is a serious weakness. It makes their documents unappealing for audiences used to grasping information in a snapshot on a chart of graph.
Consider the following extract from an insider trading policy. It was written by company lawyers (and approved by the lawyers of the regulatory agency…) and was meant to reach an audience of senior executives (most of them non-lawyers)³:
“ Corporate insiders must not Deal during the following periods:
the period of two months immediately preceding the preliminary announcement of the annual results and extending through (and including) the business day after the announcement (…);
the period of one month immediately preceding the preliminary announcement of the interim results and extending through (and including) the business day after the announcement (…); or
from the moment of the announcement and extending through (and including) the business day following such announcement, of "occasional information" (within the meaning of Article 6 of the Royal Decree of 31 March 2003 regarding the duties of issuers of Financial Instruments admitted to trading on a Belgian regulated market).”
The text above is technically correct, but how many times does a non-expert reader need to read it to understand it? A text may be accurate from a legal viewpoint, but pointless from a communication viewpoint because no one is willing or able to read and understand it. Do you really expect senior executives to read the text above several times until they can make sense of it? As an alternative, consider the following graphic display of the same information:
Improving communication through visually effective display of information can be beneficial in the area of policies, but also in almost every other situation of communication involving company lawyers: slides, on-the-spot charts on the white board or the flip chart during meetings, educational material, do-it-yourself tools for their business colleagues, etc.⁴
I often hear company lawyers worrying about their lack of “visibility” within their organization. Solving that problem might well start by enhancing the visibility of the documents they show to their business colleagues. Company lawyers should be as much concerned by the visual effectiveness as by the technical accuracy of the documents they produce.
5. Clarifying the Concept of Policy Owner
There is apparently a strong sense of ownership around policies: every policy has its “owner”, whatever that means. Most of the time, the writer of the policy, i.e. the company lawyer, appoints himself as the owner. The legal department ends up “owning” a lot of policies. Does it contribute to successful communication about policies? It does not. On the contrary, it often weakens the impact of the message. For example, the legal department might work out a “data protection and privacy policy” that applies mostly to the marketing and sales department. The lawyer in charge is also the registered policy owner. One day, a marketing manager seeks advice from the legal department and gets in response that her campaign cannot be launched as planned because it violates the data protection and privacy policy (owned by the legal department). Her reaction might be, “You lawyers, with your policies, you are preventing us from doing business!” Some companies are smarter. They appoint as policy owner the department that is the target group of the policy; in our example, the marketing and sales department. In their argument with the marketing manager, company lawyers could then respond, “This is not a policy of ours, this is your policy!” A more radical – and, in my opinion, also more logical - approach is to appoint the CEO as owner of all corporate policies. Executive authority throughout the company flows from the CEO, so why not go back to the source to prevent futile discussions about authority, legitimacy and ownership of policies? Appointing the CEO as the policy owner has another advantage: The CEO would probably want to have a look at the policy before backing it with his authority. This will provide a strong incentive to the policy writer to produce a high-quality document.
Appointing the right policy owner is one step in the right direction, but there is more to do to clarify the concept of policy owner. Whoever the owner may be, what does it mean to “own” a policy? Does this ownership create rights, such as the right to change or cancel the policy, or to suspend its application at one’s convenience? Or does it create accountability and responsibilities, such as ensuring that the policy meets certain standards, updating it, measuring compliance with it, etc.? Would it be appropriate to distinguish the roles of policy sponsor, policy editor, and policy manager?
Some companies have a “policy on policies”: a set of rules to organize how policies are written and managed. This policy on policies should definitely clarify the status of policy owners and define their mission, authority and responsibilities.
6. Thinking like an Architect
A company was experiencing chaos in its parking lot. Employees were parking their cars anywhere and without authorization. The CEO summoned the HR Director to solve the problem. The HR Director (a former lawyer) wrote a parking policy, and posted it on the company’s intranet. Nothing changed. He printed out copies of the policy and had it delivered to all employees. The situation improved for a few weeks, but then returned to chaos. Would a better-structured, better-written, visually more effective policy solve the problem? No. The problem was the over-reliance on policies to change behaviors. Lawyers, by training and mental habit, believe that setting rules is sufficient to influence behavior. But in the case of the parking situation, as in many other cases, it was simply not working. The solution was to set a gate at the entrance of the parking, and to distribute magnetic cards to employees entitled to using the parking. Of course, a decision was necessary to determine who could have access to the parking lot, and it makes sense to put that decision on paper, but who needs to go all the way and formalize this into a fully-fledged policy?
In many instances, policy writing absorbs a considerable amount of time and energy, but fails to create any value. The solution to many problems is not sophisticated rule setting on paper, but a smart (or brutal) modification of the environment: a gate at the parking lot, a new functionality on the IT system, or a lock on a door. If you want your kids to stop eating candies, don’t bother crafting a candy policy. Simply stop buying candies, and there will be no more candies to eat. Problem solved. No policy needed. How do architects direct flows of visitors in a shopping mall, a movie theater or a railway station? Visitors are unlikely to pay much attention to written policies! The message must come from the design of the environment. How to design the building so that visitors will be naturally and easily inclined to go in the desired direction? What is the path of least resistance⁵ towards the desired behavior?
Company lawyers should think more often like architects⁶. If you want business meetings to be limited to one-hour, don’t spend hours of company lawyers’ time to polish a business meeting policy: adapt the meeting room reservation system so that it is impossible (or difficult) to book a room for more than an hour. If you want participants at meetings to follow guidelines for effective meetings, the best place to post these guidelines is not the compliance section of the Intranet – who wants to go there? - but the walls of the meeting room. An international trade association had to organize a series of meetings with delegates from many organizations in the same industry. The company lawyer was concerned about the risks of infringement of competition laws. The initial answer was to write a policy to warn participants against discussing prices. After weeks of fine-tuning, the policy was sent to all the participants and posted on the association’s intranet. No one ever read it. The trade association adopted another strategy: they introduced a standard slide in the template that was used for these meetings. By default, at any meetings, the second slide of the presentation was a big reminder about the risks of violating competition laws and how to stay on the safe side. There was no way for participants not to see it.
The same thinking goes beyond policies. When drafting contracts, for example, an interesting question could be, “How to make it easier for the other party to fulfill their contractual obligations?” When providing legal advice, a critical question is, “How to make it easier for my business colleague to follow my recommendation?”
7. Adding a Communication Plan to the Policy
Company lawyers sometimes consider that their job is done when the drafting of the policy is completed, as if the rest could take care of itself. Actually, the work has only begun. Without a strong communication plan, the policy will never reach its audience. Policies must be actively pushed towards the intended audience, and that requires more than an email with a link to the policy on the intranet. It requires creativity, determination, and skilled project management. Without a supporting communication plan, discussing a policy is a waste of time. For example, we have advised an executive committee to refuse discussing any draft policies that policy owners would submit unless they also received a communication plan. It took some time to the policy owners to adjust, because it wasn’t clear to them what a communication plan was supposed to look like – lawyers are trained in writing contracts and policies, not communication plans – but they eventually got the message. Policy communication plans should answer the following questions:
What is the target audience? Is it composed of one homogeneous group or of several heterogeneous groups?
Is the entire policy relevant for all the groups, or should each group be informed about a specific part of the policy?
What is the reaction of the groups likely to be, from interest to indifference to hostility? What are the strategies to beat indifference and vanquish hostility?
Is it necessary to communicate the policy as such? Can introducing a new tool or system solve the problem, instead of introducing a new policy?
What type of language and medium is likely to be effective with each group? How to articulate and illustrate the message in a powerful way for that group?
Who should talk to what group? Their boss? The CEO? The legal department?
What level of interaction is appropriate? Is the target audience expected to take note and comply, or to give feedback and suggest improvements, or to contribute to defining the policy from the outset?
What handouts and other supporting material would be effective? A practical guide? A cartoon book? A checklist? A detailed memo? A summary sheet? A video? Anything at all? Who can do this? What budget is needed?
What is the calendar for the communication of the policy? Will there be a one-off communication effort, or an on-going communication campaign?
How do we ensure that new employees are properly briefed?
Can awareness modules about the policy be plugged into the existing training and development curriculum provided by HR, or is it necessary to tailor specific training?
How shall we control that the target audience has understood what they needed to know?
How shall we measure the success of the communication of the policy? How shall we report about it, and to whom?
8. Setting up a Policy Framework
A particular communication challenge is how to organize complex information. Company lawyers are familiar with this challenge: they experience it in knowledge management. There is a similar challenge with policies. Here again, company lawyers would be well advised to think like architects: How to build a structure to keep all policies together? Very often, this is not done. A lot of efforts are dedicated to writing policies, and hardly ever attention is left to design a smart layout to connect them together. As a result, there is no central ledger of policies, no central location to find them all. Hence, they are very difficult to find. Each policy owner keeps his policy, or not. Different people have a copy of the same policy, but they are not equally updated. The policy owner may have updated the policy, but many may not be aware of this and keep relying on the old version. Moreover, policies are not interconnected. It is impossible to relate a policy to its “mother-policy”, “sister-policies”, and “daughter policies”, the way a royal decree can be related to a law and a ministerial decree to a royal decree, and a law to the Constitution.
Too often, there is no systematic update of policies. Some policies are redundant. Different departments may have issued conflicting policies on the same topic, without anyone noticing. After a merger, a company may have competing policies for the same issue. Nothing is done about it, except piling up ever more new policies and increasing the chaos in the same proportion. This depressing list of crippling afflictions is all too familiar with many company lawyers engaged in policy work.
The root cause is always the same: policies are thought of as units, but never as a system. Too little time and energy are used to imagine and set up an overall policy framework, formalized in the “policy on policies”.
Conclusion
Whenever company lawyers communicate, on policies or anything else, there are always two issues at stake. At the apparent, official level, the topic is the business or legal issue, such as a policy or the legal risks of an investment project. But at the same time, at a more subtle level, consciously or not, company lawyers always communicate about themselves. In any communication setting, the audience will always assess the speaker (or the writer): Is she a good speaker (or writer)? Does he appear to be a competent and trustworthy professional? Do they demonstrate business acumen? Do I feel like involving them more in my projects in the future? Does it feel like they are adding value? The audience may not even be aware that they are having these thoughts about the sender of the message, yet they do. As soon as company lawyers communicate about any legal or business issue, they also inevitably communicate about who they are and a sense of the value they bring. Improving communication on policies – as on any other topic – is not just important for policies; it matters for company lawyers themselves. Will company lawyers enjoy high visibility and be perceived as value-adding business partners? To a large extent, the answer lies in their communication skills.
¹ The reader may have noticed that this article starts with a story. Storytelling is an effective communication method. Many authors recommend it to catch and maintain the reader’s or listener’s attention. Company lawyers, in their communication, hardly use storytelling. The book by Christian Salmon, Storytelling, 2007 might convince lawyers to add storytelling to their communication toolbox.
² www.oxforddictionaries.com
³ The original text has been edited for the purpose of this article. The extract is shorter and simpler than the original. The use of this example has been authorised by the company owning this insider trading policy.
⁴ See Duarte, Slide:ology - The Art and Science of Creating Great Presentations, 2011; Sibbet, Visual Meetings – How Graphics, Sticky Notes & Idea Mapping Can Transform Group Productivity, 2010; Tufte, The Visual Display of Quantitative Information, 2001.
⁵ Fritz, The Path of Least Resistance, 1989
⁶ Thaler & Sunstein, Nudge, 2008