Can, Could, Won't: Managing Risk

Additional risk: eye pokery

At one of the earlier stops in my career, I was fortunate enough to work with a top-notch legal compliance officer. Not only was this person quick and skilled, they were also exceptionally patient and understanding. That was all very necessary, since it was their poor task to proof all of my copy for not just the usual editing maladies, but also for anything that could put our employer in legal jeopardy.

What probably made the work (slightly) more tolerable for them was that I had some background in law in the first place. A political science degree, some secertarial work for law professors and lawyers at various temp jobs, and other roles prior to that gig made me think that I knew some stuff. And, well, I did; just enough to be dangerous. Because my skill set was nothing compared to what this employer wanted to instill, and even less than what many of our clients wanted to enforce. That's why the compliance role was there in the first place.

After a few years of high throughput copywriting and creative direction, I just didn't go down paths that led to issues. Can was just automatically changed to could, claims were softened with puffery or avoided, dates were omitted because the nature of our delivery channel (email) led to way too big of a chance of a bait and switch accusal. Sweepstakes were swapped out for less problematic premiums, and sensitive discussions were taken out of email, putting us light years ahead of, sadly, people who get major political party nominations to be the leader of the Free World. I've pretty much worked in a legally compliant way ever since, and have even served as the de facto legal expert for several employers afterward that just didn't have the budget or interest to have true counsel.

It wasn't as if anything I wanted to try before I got all of that training was irresponsible. None of my clients ever ran into legal issues due to creative before or since, and while some of my stops have run into fireworks for poor practices, none of that was related to practices in my part of the business. But once you get trained to go in a certain direction, that's where you go creatively. Especially since the other directions don't seem to gain you much more than added risk.

Which leads me to the risk that's on the other side of the ledger. While there are plenty of consumer categories that play in arenas where true and correct fear lives in the heart's of your clients, the real shame of it all is that those are the categories that are most ready for innovation. (That's the reason why so many job listings in restrictive fields come with a heavy requirement for relevant experience; it's a safeguard for things that can never, ever happen.) Class action suits are just the end for many a buisness, if not for the obvious legal damages, but also from the turnover they inspire. Doing anything new or novel in these categories takes unusual courage from your client, and presentation skill from the agency.

The trouble with being too aware of risk is that it breeds a degree of sameness and safety to all of your finished work, and in that sameness, you can't innovate, learn from outliers, push the envelope... or feel truly alive in the gig.

Because at the end of the day, there's legal risk in getting out of bed. It's just a little more pronounced and obvious than the risk you get from weak creative.

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