The marketing team and legal: The good, the bad, and the way forward

History is littered with epic battles: Rome versus Carthage, Ali versus Frazier, King Kong versus Godzilla, and many others. One such battle that has persistently played out over the course of decades is the legal department versus the marketing department. Yet, it doesn’t have to be this way. Consider the goals of the marketing team: promote the company, increase brand awareness, and drive revenue. For the legal department, you have: to protect the company, comply with laws and regulations, drive value creation, and limit value destruction.

Reading between the lines you quickly realize that these sets of goals are not that far apart and, actually, are pretty similar — especially when it comes to driving revenue for the company. Instead of viewing the marketing department as an opponent that must be conquered, the legal department should see it as an ally that should be embraced. Here’s a three-point plan to do just that:

1. Educate the marketing team on the basics

One common mistake that in-house lawyers make is thinking every department or group within the business understands the full scope of legal obligations that apply to their day-to-day activity. They don’t. You can view this in two ways: a chore or an opportunity. If you go with the former, you will continue down the historic path of legal and marketing departments scratching and clawing at each other and calling each other unmentionable names. If you go with the latter, you take the first step in changing the narrative — that is, if you take the time to help educate the marketing department on the rules of the road and the issues that can drive a marketing campaign into the ditch, you can win friends and make your work life easier.

Start with simply asking the head of marketing if the legal team can spend some time presenting on legal issues that apply to the most common marketing efforts but with time to hear from the marketing team about the problems and issues they face when trying to comply. I believe marketing will jump at the chance. Assuming yes, focus on a few key areas, such as:

• Trademarks
• Advertising standards/False advertising
• Press Releases
• Contests/Sweepstakes
• Copyrights
• Data Privacy
• Social Media
• Spam/TCPA

Or identify whatever areas are most important to the needs of the marketing team and your company. Keep the training high level and easy to understand. Your goal is to flag common pitfalls and get the marketing team ready to ask questions and bring legal in early in the process. A problem you can solve today is much easier to solve than a problem that has been baking for six months. Lastly, be prepared to repeat the training yearly — and record it so new employees can watch and learn.

2. Reduce friction and develop a process

The easy path when dealing with the marketing team — or any part of the business — is to simply take things ad hoc and in whatever order or state of affairs that exists when marketing reaches out to legal. As noted, a problem that comes to you after it has been brewing for months is much harder to solve than a problem you get to deal with immediately. The secret is creating a set of processes between the legal department and the marketing department that ensures issues are brought forward quickly and in a timely manner. In other words, work with marketing to develop a process to reduce friction between the groups and enable faster resolution of issues.

It starts with simply asking the marketing team about its priorities. Do this every week versus just once a quarter or once a year — as is more typical and far less useful. If you know what the marketing department thinks are its most important projects for the week, you can ensure that the legal team is focusing on those or talking with marketing about other projects that may in fact be more important than marketing realizes. Regardless, if marketing sees that legal wants to focus on its priorities, that group tends to be much happier and more likely to buy in more fully to the process.

Next, for each general issue that the marketing team regularly needs help with — for example, obtaining trademarks — create a checklist that includes the steps and timing for each stage of the process. If marketing follows the checklist, problems are minimized and legal can turn the work around faster.

Lastly, work out reasonable expectations for turnaround times for different types of projects. For example, a media buy on the company’s paper is going to go much faster than one on the vendor’s procurement paper that needs heavy redlines. If marketing wants a faster turn, you are incentivizing them to stick to their guns and insist on the company’s paper.

If you can master these three friction reducers, you will almost instantly see the relationship with marketing improve dramatically and problems related to the marketing function decrease just as quickly.

3. Figure out the money and key performance indicators (KPIs)

Unfortunately, the marketing team likely has little understanding of the costs associated with different projects they lob over to the legal team. For example, marketing may consider obtaining trademarks — or even “knock-out” searches — to be a cost-free task. They are not, but it is up to the legal team to educate the marketing team about costs. Similarly, if possible, work out a cost-sharing arrangement with marketing whereby a certain base level of services from the legal department falls on the legal budget and anything over that falls on the marketing team if they wish to continue. This is a highly effective way to get the marketing department to think through priorities and to communicate frequently with the legal team.

Regardless of the budget situation, it is critical that the legal department take the lead on communicating what it has accomplished for the marketing team on a weekly — or no less than monthly — basis. If you don’t tell them, odds are good they won’t know all the great things the legal department has done for marketing. Work out a regular report; a one-pager of highlights will suffice, it’s not the time to write your first novel.

Lastly, work out some critical KPIs that highlight the success of both teams — things like the number of trademarks obtained, the number of marketing-related contracts signed, the average cost to prosecute a trademark, and so on. Sharing the success of the partnership is a sure way to win hearts and minds and get the marketing team to brag about the legal team. Since legal is in the service business, that’s a worthy goal.

The relationship between the legal department and the marketing team does not need to be contentious. Both groups have the best interests of the company in mind and on that basis alone they have much in common. Harness the power of common goals, being a teacher, and going out of your way to understand the priorities of the marketing department and develop processes that help speed up service delivery and report out on the great things the two groups accomplish when working together.

If you subscribe to Practical Law, you have access to an incredible number of resources to help any legal department get up to speed on marketing issues and deliver services quickly and practically.

Sterling Miller, HILGERS GRABEN PLLC

Sterling Miller is a three-time General Counsel who spent almost 25 years in house. He has published five books and writes the award-winning legal blog, Ten Things You Need to Know as In-House Counsel. Sterling is a regular contributor to Thomson Reuters as well as a sought-after speaker. He regularly consults with legal departments and coaches in-house lawyers. Sterling received his J.D. from Washington University in St. Louis.