Why Legal Departments End Up Saying "It Depends": The Misalignment and Mutual Distrust That Create the "OK/NG Binary" Problem
0. Disclaimer
This article represents the personal views of the author, A0. It is not based on any specific company, individual, or case, and generalizes common practical scenarios. Real-world examples have also been abstracted and anonymized to the extent that their core meaning is not lost.
Furthermore, this is not the provision of legal advice. Please make decisions regarding individual cases based on the facts, internal company policies, and, if necessary, the advice of external experts.
1. Introduction
"So, in the end, is it OK or NG from a legal perspective?"
If you work in a legal department, you have likely been asked this question or something similar at least once.
Even on X (formerly Twitter), posts from legal professionals expressing frustration about this tend to get a lot of engagement, and I understand the urge to tell them, "Try thinking for yourself a little."
However, I believe it is a bit dangerous to dismiss all of this as "intellectual laziness."
What is happening here is often not just that the other party isn't thinking, but that the legal department and the person seeking advice are speaking on different levels, and that there is often a lack of mutual trust.
I will organize this by referring to the former asa "dimensional misalignment"and the latter as"mutual distrust."
2. "OK/NG" is less about intellectual laziness and more about confusion caused by dimensional misalignment
The tricky part about legal consultations is that what the person seeking advice wants is not necessarily a desire to "give up on thinking."
In practice, there are often hidden objectives, such as: "I'm struggling with how to proceed with this case," "I'm thinking about how to explain this to my boss or the decision-maker," or "I want to know under what conditions we can move forward."
In other words, rather than not wanting to understand the legal thought process, what the person seeking advice wants is,first and foremost, to achieve their objective.
On the other hand, the legal department often replies with, "That conclusion depends on the prerequisites," "The legal issues are organized as follows," or "We still lack sufficient facts." Of course, these statements themselves are not wrong.
However, what is happening here is a misalignment in the dimension of the question and the answer. From the perspective of the person seeking advice, they are asking at the dimension of a conclusion: "What is the legal opinion that serves as one element for achieving my objective?"
In contrast, the legal department is responding at the dimension of judgment: "Given these premises, here are the issues and how they would be judged."
When they are already struggling to solve the equation for achieving their objective and just want an answer for the legal part,if the legal department carefully adds more "functions for judgment," it only confuses the person seeking advice.
3. Respond after exploring why that conclusion is needed
Therefore, what the legal department should first confirm is, "Why do you want that conclusion?"
This is often said, but in reality, it is necessary to explore the content based on the reasons mentioned above or to think about it together.
However, there are, of course, some people who just want the legal department's stamp of approval.
In fact, I have been pressured by a business representative to give an OK/NG decision with quite a high level of intensity because they wanted to make a large overseas transaction happen.
However, when I listened carefully, I realized I had only been given partial facts, and the overall scheme was quite disadvantageous to our company.
As I continued to confirm additional facts, several missing premises came to light.
In the end, we slightly modified the scheme to mitigate the risk, involved the representative's superior to share the risk awareness, and kept a record via email.
As you can see, there are situations that should be handled as governance issues rather than thinking together, so caution is required.
4. The next thing to look at is whether any distrust toward the legal department remains
In another instance, shortly after I transferred to a new department, I served as an instructor for an in-house seminar on a certain law.
I had intended to organize the content quite carefully based on the law and materials from the competent ministry, but during the Q&A session, a manager in attendance pressed me strongly, saying, "The content of this seminar is wrong."
When I looked into it further, I found that the person was looking at the output of a generative AI, which differed from my explanation.
When I explained it by showing the legal provisions and the ministry's materials one by one, they were finally convinced that "the generative AI was the one that was wrong."
This was not simply because the manager who attended did not understand.
Since I had just transferred, there was little trust in me yet, and embarrassingly, the generative AI held more "authority" than I did for that brief moment.
As you can see, even when providing a correct explanation, there are times when the person seeking advice does not fully trust the Legal Department's explanation.
Even if the Legal Department thinks they have "explained it perfectly," from the other party's perspective, anxieties remain: "Is that logic really correct?" and "Can I trust what this legal person says and explain it to my boss or business partners under my own responsibility?"
In short, the other party is not just failing to understand; they are not convinced.
What is effective in these situations are primary sources such as legal provisions, guidelines, regulatory Q&As, and court precedents.
That is why it is said in Legal that you should carry the six major codes and value primary sources.
5. The Dilemma of "Mutual Distrust"
On one hand, Legal may feel, "Are they thinking this through?" "Are they hiding inconvenient facts?" or "Are they trying to get a commitment out of me?" while the business side may perceive it as, "Are they really saying the right thing?" or "Aren't they just trying to brush me off?"
When we unravel "Yes/No" questions in this way, I believe it often stems from the fact that neither side trusts the other.
What's more, the troublesome part is that this distrust is, in a sense, rationally born for both sides.
From the Legal perspective, if they just return a Yes/No without fully understanding the facts and a problem arises later, they will be dragged into it. That is why they are cautious.
On the other hand, from the business side, even if the Legal explanation is correct, if they cannot explain it to their boss or business partners, the project will not move forward, and a sense of distrust arises that they might just be being given vague answers about a complex case. This leads to demands for simple conclusions.
Thus, a loop occurs wherethe caution of the Legal Department invites distrust from the business side, and that distrust makes the Legal Department even more cautious.
To break this loop, it is necessary to provide the Legal Department's view in a way that aligns with the consultant's purpose.
If they want to move a project forward, ask what the obstacles are, propose several options that seem best from a legal perspective, or discuss and create them together.
(Admittedly, which risks to take to proceed is ultimately a decision for the business and the decision-maker, and the role of Legal is to prepare the materials and options for that decision.)
If a decision is needed, just as when moving a project forward, you will brainstorm the content the decision-maker cares about and anticipated Q&As, and clarify the direction of the explanatory materials.
I mentioned earlier that "if Legal adds functions while the business division is trying to solve a calculation formula, it will cause confusion," but it is important for Legal to solve the formula by asking the business division for variables and then unraveling the full picture of the calculation together.
Of course, since there are cases where the business side's consideration is insufficient or the aforementioned "just want to get an endorsement" case, it is not necessarily correct for Legal to take everything on, but in many cases, by guiding the business division—and by extension, the company—toward a form where they can make decisions through this process, trust is fostered, and the problem of mutual distrust decreases.
6. Summary
Among those who ask, "So, is it a Yes or a No in the end?" there are certainly people who want to shift responsibility. However, you should not call everything "thought-stopping" based on that one phrase.
In many cases, what is there is that Legal and the consultant are talking on different dimensions, and there is mutual distrust between Legal and the business.
Therefore, I think what Legal should look at first is why that conclusion is necessary. How will it solve the issues the business division is facing? Through a track record of solving problems, have they built enough mutual trust?
I think we share the common understanding that "the job of Legal is not to declare black or white," but then what is Legal?
As I have repeatedly stated in past articles, Legal is a "function that organizes the company's decision-making and operations."
Therefore, I believe the answer Legal should return, rather than an answer that ends with an abstract "it depends," is an answer that organizes "what the issues are under the current premises, under what conditions it can proceed, and who will take on which risks" in a form that allows the company to act.