I’ve written before about how nobody wants real debate: Before the vote is taken, you “socialize” the result. Everyone is brought on board. The result is preordained.
Only then do you formally present the question to the committee. The committee nods in agreement with the result. And the resolution is passed.
Presto! No muss, no fuss, no possible dissent.
What could possibly go wrong?
Funny you should ask.
Suppose an interested observer (perhaps a regulator) or a motivated opponent (perhaps opposing counsel in litigation) were to enter the scene. After all the documents were produced and the records reviewed, the questioning gets pretty tough:
“You say that the committee is engaged, right?”
“Yes.”
“The process for making decisions is rigorous?”
“Yes.”
“Members read materials in advance, study them, and understand what’s going on?”
“Yes.”
“Over the last five years, 246 suggestions were presented to the committee; is that correct?”
“Yes.”
“And 246 times out of those 246 suggestions, the committee voted in favor; is that right?”
“Yes.”
Okay, okay. The cross-examiner finally asks a non-leading question, and your witness gets to sneak something in:
“Look at the minutes! They say that the committee discussed this issue!”
“That’s what the minutes say. But you agree with me, don’t you, that after those discussions, the committee voted in favor 246 out of 246 times?”
Or maybe it plays out a different way:
“All the decisions are actually made .”
“I see. You’ve produced in discovery all the documents that we requested?”
“Of course.”
“In all those documents, there was not a single minute of a meeting in which any suggestion was actually rejected by anyone?”
“I guess that’s right.”
“In all those documents, there’s not a single time when a suggestion was voted down?”
“I guess that’s right. But trust me; this process was rigorous.”
Maybe the regulator, or opposing counsel, or the jury will trust you.
But maybe not.
Maybe the regulator will say it would like to see evidence of someone pushing back against a suggestion. Maybe a jury will expect to see dissent recorded as a negative vote.
I understand that everyone feels better if we grease the skids. No one in an organization wants to run the risk of having intelligent, public debate, in which a question could be answered either “yes” or “no.” That’s — what? Dangerous? Unseemly? Potentially embarrassing to someone?
Everyone would rather know the answer in advance.
Just consider that there are disadvantages to consistently greasing the skids.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
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