John Adams once said, “Facts are stubborn things.”
Good inside counsel understand that our jobs involve not only providing advice about legal risks, but understanding those risks in relation to pragmatic business goals. However, it is impossible to provide this sound advice without a deep knowledge of the specific facts surrounding the situation in which you are asked to assist. Being a good business partner requires that we develop techniques that elicit maximum relevant information. However, clients are sometimes unable to provide those stubborn but all-important facts.
The path to full information is familiar to counsel who have a background in litigation. Deposition techniques enable litigators to draw out information they can use to build cases or assess risk. Similar techniques can help all inside counsel maximize information-gathering, while at the same time building rapport with their internal clients. The following techniques apply to a variety of counsel-client interactions, including discussions regarding business proposals, crisis management, compliance investigations or assessments of the business’s risk in the face of new legislation or regulation.
Prepare for the conversation. Even in this fast-paced world, counsel must take time to fully prepare for the conversation with the appropriate business partner. First, determine who in the organization will likely have the necessary information. Next, ask your client for relevant documents, review them and create a detailed list of questions before you speak with the process owners and your business partners.
Establish rapport with your “witness.” At the outset of a deposition, litigators try to establish rapport with the deponent to maximize their chances of getting the witness to volunteer information. While this may seem like a given in the context of the internal counsel-client relationship, counsel may face clients who can sometimes be reluctant to expose mistakes. Regardless, when a crisis occurs, counsel’s first task is to put the client at ease and re-establish trust.
One way is to start with questions that fill in the background of business decisions leading up to the problem as opposed to getting straight to the immediate issue. Additionally, counsel should remember that business clients are focused on their immediate business goals, not necessarily on the long-term risk implications of a particular issue. Asking questions that will broaden clients’ perception will help fill in your knowledge and ease the decision-making process down the road.
Keep your questions simple and direct. As with depositions, counsel should focus on who, what, where, when, why and how questions with their internal clients. Move from general questions to specific to determine what your “witness” knows and whether you need additional information from other business partners.
Insist on complete answers. Like the litigator, counsel may face deponents who provide incomplete information or ambiguous responses. Counsel must insist that business partners fully and precisely answer all questions, and may need to ask questions more than once to ensure they exhaust clients’ knowledge of the subject.
Record the facts. Counsel should record necessary facts to ensure accuracy and provide support for his or her subsequent advice, keeping in mind issues of attorney-client privilege that may arise in the future.
Despite the adversarial nature of the deposition in litigation, the underlying goals of depositions—gathering evidence and building a case—are compatible with the goals of the inside counsel-client relationship. That is, counsel must obtain complete information to provide useful guidance that will advance the business’s goals while appropriately mitigating risk. “Deposing” your internal clients will pull out those “stubborn facts.”
Janice Block is executive vice president, general counsel and chief compliance officer for Kaplan Inc.