Early in Tony Fadell’s best-selling memoir/manual, Build: An Unorthodox Guide to Making Things Worth Making (2022), the designer and engineer behind the iPod, iPhone, and the Nest Labs (now, Google Nest) Learning Thermostat advises entrepreneurial readers to join a company whose products similarly resolve, “in a way you’ve never heard before, but which makes perfect sense once you hear it,” “a problem—a real pain point—that a lot of customers experience daily.”

    Fadell points to Steve Jobs’ 2007 speech that publicly introduced the iPhone: “He used a technique I later came to call the virus of doubt,” deliberately enraging customers about the shortcomings of their current devices “so they can get excited about a new way of doing things.”  Such an advance, the author recommends, should be presented with “a human example,” “a compelling [but simple] story,” or a “great analogy.”

    However, as summarized at the beginning of Chapter 5.7 (“Lawyer Up”), Fadell’s expectation of counsel’s contribution to corporate creativity is somewhat more subdued:

    “Your legal team is there to inform your choices, not make them for you.  So a ‘no’ from legal isn’t the end of the conversation—it’s the beginning.  A great lawyer will help you identify roadblocks, then move around them and find solutions . . . [But m]ost lawyers excel at two things: saying ‘no’ (or ‘maybe’) and billing you.”

     Despite labeling lawyers as prospective deal-killers, Fadell does find occasion to heed their “no”: he recommends following legal advice “explicitly” with regard to “anything actually illegal.  Or lies. [Would those sometimes be characterized as a “maybe”?  It’s unclear from that chapter.]  Or any of the basic stuff you need a lawyer for—contracts or HR or the terms you put on your app for protections and privacy.”

     Nonetheless, Fadell suggests that the parties negotiating an agreement agree on “fundamental deal points” before “let[ting] the lawyers argue the legalese.” (Exactly how he distinguishes in his company’s contracting process between “basic stuff,” “fundamental deal points,” and “legalese” is also left unsaid.)

    Not surprisingly, the author praises lawyers who become well-versed not only in a client’s legal posture but also in its business goals and priorities.  From this perspective, paying even an apparently exorbitant settlement amount could be wise if it precludes protracted and distracting litigation.  (Probably to reflect such inclusion of in-house counsel in their “C-Suite” decision-making, many large corporations now use the title, Chief Legal Officer rather than the traditional, General Counsel.)

     Fadell’s ideal illustration (literally, with a photo) of a situation solved by “a lawyer who doesn’t just think like a lawyer” involves Nest’s General Counsel in 2015.  That individual helped him to devise, as the company’s CEO, a very practical response to the federal requirement of attaching to the corded Nest Cam video camera a “Strangulation Hazards” warning sticker—to whose “strangled baby” diagram Fadell took particular exception (only figuratively, though: “Sometimes in life you just have to nestle your new product right next to a picture of a baby in mortal peril.”). 

     However, most lawyers, and many law students, might have pointed out to Fadell the inconsistency between his description of lawyers as “maybe”-prone and his highly questionable pronouncement that “lawyers live in a black-and-white world.  Legal versus illegal.  Defendable versus undefendable.  Their job is to tell you the law and explain the risks.”  

     Moreover, are not identifying and analyzing many of those “risks” the lawyers’ own ventures into “grayness”?

     Finally, someone of Fadell’s long experience in the stratosphere of “the high-technology space” must certainly be aware that lawyers can also—and can perhaps best—“add value” precisely when “the law and. . . the risks” are both uncertain, and/or labile.  

      (With regard to his “cheap” shot on billing: like (famously, but possibly apocryphally) Archimedes, many engineers, designers, and executives don’t confine their client-related considerations or insights to their formal working hours, and/or their official offices.  I think it’s beneath Fadell to jab gratuitously at lawyers who “bill you from the shower” if that’s where they happened to be thinking productively about a client’s legal issues.)

     Another dimension of a top executive’s sidelining his company’s own lawyers appears in Behind the Cloud (2009), by Mark Benioff, the founder, chairman, and CEO of Salesforce.  

     Especially “in international situations where we don’t want to appear to be litigious Americans and we want to build a strong relationship with the partner or vendor,” the company uses a “well-drafted contract with ‘light and love,’” that is, “a one-page document that is bulletproof and executed perfectly—with as little legal language as possible. . . . The key is that it is tight enough to be binding, but loose enough to give latitude so that each party can operate freely. . . . ”

     If Fadell most appreciates lawyers who “realize their voice is part of a chorus,” perhaps heard only after the first verses have been sung, at least Benioff would, though keeping lawyers in the background, involve them from the very beginning of the construction, calibration, and careful customization of Salesforce’s seemingly simple and straightforward song.