Today we honor one of the ‘Trials of the Century’ from the 20th century, as on this day in 1925, the Scopes Monkey Trial ended with defense attorney Clarence Darrow giving one of his greatest closing arguments, asking for his client to be convicted so the case could be appealed. This tactic was just one of the trial strategies employed by Darrow to outmaneuver and humiliate the prosecution’s team. Denied the opportunity to bring in evidence of evolution into the trial, Darrow called William Jennings Bryan to the stand and in a wide-ranging cross examination, Bryan was subjected to severe ridicule and forced to make ignorant and contradictory statements to the amusement of the crowd. Bryan’s humiliation was so great that he literally ate himself to death in the week after the trial, dying on the 8th day.

I have long studied this trial and Darrow’s cross-examination of Bryan was one of the signature moments in trial lore. Darrow certainly had his fair share of unusual tactics in his legal career. Yet sometimes you need to have crazy ideas, whether you are a trial lawyer, a Chief Compliance Officer (CCO) or a business leader. I thought about this when reading a recent Corner Office column in the New York Times (NYT), entitled “Share Your Ideas, Even the Crazy Ones”, where Adam Bryant interviewed Joe Andrew, the Global Chairman of the international law firm Dentons. It was an excellent piece and had many lessons for the CCO.

Andrew began with a lesson on the difference between management and leadership, which he learned from his mother. He said, “She taught me early on the difference between management and leadership, which is about creating the circumstances for creativity. The people who become leaders are not just creative themselves, but they create circumstances for others to be creative.” Such creativity was expected in the Andrew’s household, as he noted, “in our household, questioning and being a rebel were expected. At the dinner table, she would ask, “What are you doing that’s creative? What have you created that you’re proud of, and that you think is fun and fascinating?””

Andrew took from this a passion to create opportunities for others, even when meeting a stranger, such as a cab driver. He learned from his mother to not ask “What do you do?” but rather “What are you doing?” and this question is about “What you are in the process of doing right now.” As a law firm leader, Andrew believes “The leader’s job is to create the ability for people to feel comfortable to share their thoughts and ideas, whatever crazy thoughts they might have. Their ability to be willing to express it is really important.”

This specifically includes people with ideas which might seem a bit off initially. Andrew said, “You have to identify and root out people who try to slam the door on creativity. You’ve got to be religious about communicating to someone that just because they’re smart, they shouldn’t be closing down conversations. The rules of this game are that you’re going to listen to others. My job is to convince them that despite all those things, they’ve still got to change. They’ve still got to be creative. They’ve got to be re-evaluating constantly and asking the tough questions.”

Equally important is to move away not only from the nay-sayers but from group-think as well. Andrew related, “You also have to constantly communicate the importance of creativity. That can be tough with professionals. Every single day, I go into a room of people who have succeeded since the day they graduated from kindergarten. They were the best in their class, they went to the very best schools, they do fantastically on standardized tests, they go to the best universities in the world, and they come out and make a lot of money.”

Unusual ideas can come from asking challenging questions. Andrew said, “Every day, I’m saying to people, don’t stop asking the tough questions. Because you’ve got to be challenged. And people have to be comfortable challenging you, and feel like they’re actually going to be rewarded by appropriately challenging you.”

Here I was drawn to the remarks in Matt Kelly’s interview of former Compliance Counsel Hui Chen, on his podcast Radical Compliance. Chen related that the Department of Justice (DOJ) Evaluation of Corporate Compliance Programs (Evaluation) document is designed to have CCOs and compliance professionals think about their compliance programs by asking questions. She explained, “Questions invite people to think. I like to call them evaluation questions. My goal is really to get people to really think about what they’re doing, what is the goal they’re trying to accomplish, how are they going to measure the results, how do they know it’s working. I’m a big fan of asking questions. The result of that, I’m hoping is that people really get to think about what they’re doing and why they’re doing it and how do they know that they’re successful at it.”

As a CCO, you will always have to be creative but the interview with Andrew drives home the leadership skill of using the creativity of others. This is both on your own internal compliance team but also in the other corporate disciplines which will operationalize your compliance program. Simply because an idea is ‘outside the box’ does not mean that it may not work better or be better suited for your own company’s risk management system. Andrew said that one of the key skills is that you must “be willing to try things that might fail.”

If you are a trial lawyer (or in my case a recovering trial lawyer) one of your heroes is Darrow who was not afraid to try crazy ideas and yes, he even lost a trial or two. As a CCO you have to be ready to persevere and move on, even if it means trying some crazy ideas every so often.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2017

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