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The lawyer’s role in advertising and marketing – from both sides of the fence!

Don’t get me wrong. I love being a lawyer. I do, however, sometimes look back nostalgically to the time when I was blissfully ignorant of some of the things that are day to day occurrences for me now.

When I was a marketer, particularly one that had been trained in the prestigious P&G manner that dictated that any important recommendation could be made and fully substantiated in one page, I prided myself on being able to write clear, persuasive documents. In fact two of the favorite adjectives my last boss used in relation to good writing were “cogent” and “pithy”. One of the hardest things for me to do when I went to law school after 25 years in business, was to set aside my drive to keep everything I wrote to one page! The fact of the matter is that while that may be an admirable and achievable goal in business, when it comes to legal agreements – shorter is not always better.

Your lawyer has the responsibility of ensuring that there is enough specificity; that “what if?” eventualities are covered (i.e. “what if everything goes horribly wrong!”); and that what each party means is clearly set out and understood by the other. I didn’t know that there is actually a legal principle saying that ambiguity could be construed against the person who drafted it that way. I know all that verbiage seems like unnecessary complication and unending “legalese”, and I was one of the clients who complained about it at times, but it really is important!

As an aside, who knew that I couldn’t capitalize whatever word I wanted for emphasis? In fact, a marketer’s Life is made up of REALLY adding Emphasis, and Driving the Reader to the Proper Conclusion through the use of such methods. Little did I know that in the legal world, you can only capitalize a defined term”¦.it drives some clients crazy to read through all that boring prose and not see any of the key marketing deliverables capitalized as any normal person would do!

Language can be such a tricky thing”¦.when reviewing advertising copy it is often a challenge to merge sufficient clarity (to avoid running afoul of the Competition Act and other regulations) with maintaining the creative “hook” or punch that delivers great advertising. Courts and regulators use an ordinary impression test but the last thing advertisers want to be is ordinary!

When I was a client, I was often spoiled by my ability to get the legal review or answer back quickly, if not instantly, from our outside counsel. Even though my background means that I have a visceral understanding of the often unavoidable timelines and urgency faced by marketing and advertising clients, now that I am sitting in the lawyer’s seat I can see the client is often doing themselves and their lawyer a disservice. Both are deprived of the opportunity for “sober second thought” – an element which is often so important to great solutions.

We do respond as quickly as we can (even if it may be reluctantly) but it is our constant advice to our clients to involve your lawyer early. We are not nosy, nor are we trying to pad our bill, we are trying to play our role on your team to your best advantage. The sooner we are involved the more likely that your “big idea” can hatch and we can navigate any potential pitfalls and issues early so that the idea can come to fruition.

The bottom line? Involve your lawyer early, let them help you navigate the “boring” stuff and make your marketing and advertising efforts the best and most “bullet proof” they can be while you achieve your goals. In an earlier blog we had recommended that you involve your lawyer early in order to assist you creative team. Let’s turn that around to also make it clear that early involvement makes it easier for your lawyer to take that extra time to think things through and, with luck, maybe even streamline all that legalese.


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