A lost summary judgment motion. A lowball offer to settle. The denial of an appeal.
Lawyers are constantly the bearers of bad news.
“Delivering bad news is the thing I was least prepared to do when I became a lawyer,” said Charlottesville, Va., attorney Kyle McNew. “It is painful to realize there is nothing you can do to help a client.”
How do you break bad news to a client – gently or rip off the Band-Aid? Via email or in person?
Practice management consultants and attorneys agreed that lawyers must walk a fine line: be direct but be positive; try to deliver bad news face to face but consider the client’s preferences and most importantly, prepare the client at the outset of the relationship for a variety of potential results.
Communication is the key, stressed Declan Leonard of McLean.
“Set realistic expectations up front with the client,” he said. In addition to laying out all possible outcomes – both positive and negative – at the beginning of the case, lawyers should continue discussions throughout the course of the representation about what could happen, Leonard advised.
“If a client isn’t aware of the potential outcomes and believes there is no way we can lose this case, then you have a lot of explaining to do when it doesn’t go your way,” he said.
Jared Correia, a senior practice advisor at the Law Office Management Assistance Program in Boston, urged attorneys to lay the appropriate groundwork early in the client relationship for the possibility of bad news later on.
“Lawyers should lay out the potential consequences of different actions and make sure that clients understand the broad range of things that can happen,” he explained. “The client has to know that a negative result is possible and that if we do X, Y can happen or Z can happen.”
If a judge has refused to exclude certain evidence or a deposition proved damaging, the groundwork helps begin the subsequent discussion, he said, by referring back to the prior conversation – “Remember when we talked about X, Y and Z?”
When they talk about trouble, lawyers should be prepared to explain what happens next, which also provides an opportunity to be positive, Correia said.
“Now that Z has happened, here are two or three possible paths we can take,” like appealing a decision or maybe considering a settlement if the court certified a class action, he suggested.
“That makes it easier to break the bad news.”
Timing and delivery
While bad news may be unpleasant to deliver, don’t sit on it.
“One of the senior partners likes to say that bad news isn’t like wine, it doesn’t get better with age,” McNew said.
Heather Cooper, a family law attorney in Fairfax, Va., noted that time is of the essence before the client hears the news from someone else.
In a divorce case, for example, she certainly does not want her client to hear from their spouse about a court ruling before she reaches out.
The delivery of news depends on the client, McNew said, with an evaluation of how the client will best understand the information.
In some situations, he sends a message that lays out the details of what happened and includes a note to call him at the client’s earliest convenience.
For clients who prefer communication via email, this method “gives them the opportunity to absorb and process everything and reflect rather than having to react immediately,” McNew said.
Other clients require an in-person meeting, he said. “I have a client right now that breaking bad news over the phone or electronically would be devastating.”
Factors like age (younger clients may prefer to communicate electronically) and sophistication (a client who does not excel at reading comprehension should not receive a court brief as an explanation) should be considered.
Cooper said she prefers to deliver bad news in person or on the phone.
“Clients oftentimes have follow up questions and a lot of concerns and I find it easier to do in a personal conversation than with lots of back-and-forth in writing,” she explained.
Before she sits down with a client or picks up the phone, however, she does some preparation.
“I always try to look for a silver lining or another door opening when one is closed,” Cooper said.
Particularly with more emotional clients, Cooper will start out reminding the client about some positive issues, break the bad news and try to conclude with options for how to deal with the bad news.
She also blocks off “follow up” time.
“I will hang up the phone and in five minutes, it will ring and the client will want to talk again,” Cooper said. She gives her paralegal and assistant a head’s-up that she is delivering bad news, so that they are prepared to be even more patient and understanding with the client.
Allow clients the space to be upset, Correia said.
“It’s not necessarily what you say but how you say it,” he said. “Speak in a lowered voice and don’t sound excited. After you deliver the bad news, listen to what the client has to say and show that you care about their reaction.”
Be clear and direct and avoid sugarcoating, he said.
“A lot of attorneys try to sugarcoat bad news and that can lead to a misunderstanding,” Correia said.
If a client does storm off or hang up the phone, “give them a little bit of time to cool down” before you re-engage, he suggested.
Particularly if the case is ongoing, the attorney will need to communicate with the client again, and a little time may allow cooler heads to prevail.
McNew encouraged attorneys to be willing to admit when they made a mistake.
“If I’m going to pursue a doctor for medical malpractice for his mistakes, I ought to be able to have thick enough skin to look a client in the eye and say ‘I messed up,’” he said.
“One thing that should never happen is having to call a client and tell them that this thing they never saw coming just happened,” McNew said. The better alternative: calling and saying, “Remember that thing we said could happen but we hoped it wouldn’t? Well, it happened.”
“An ounce of prevention is worth a pound of cure,” he noted. Lawyers “can save themselves a lot of sleepless nights by providing clients with reasonable expectations and a fuller understanding of what could happen up front.”
California-based law practice management consultant Ed Poll suggested that attorneys provide clients with a budget at the beginning of the case that includes not only costs but also potential outcomes and paths that the case could take. “Really prepare your client, so that they know it could not go well and make sure that it is a continuing dialogue.”
Poll advocated for greater inclusion of the client in the process so that a team mentality develops.
“That way, no matter how bad the outcome, the client will have a hard time criticizing because they were involved in the decision,” he explained.
For example, when working on a motion for summary judgment, discuss with the client whether or not to disclose certain information. “Explain that the other side doesn’t know the information yet and if we disclose it now, it may come back to bite us down the road,” Poll said. “But if we include it in the motion, we could be successful and end the case now. What do you think we should do?” Giving the client a level of responsibility requires them to take some accountability later on.
Client participation may also help.
Having a client present at trial helps them to see the process, McNew said, and witnessing the jury’s verdict allows someone else to deliver potentially bad news.
Bad news may also turn out to be not so bad, Leonard noted.
He used the example of noncompete litigation, in which one party seeks an injunction against the other. At first blush, a court’s injunction against a client would definitely be called bad news.
“But the devil’s in the details and it is important to parse through the order and understand exactly what a client can and cannot do,” which may take some of the sting out of the loss, Leonard said.
“Nothing from the courts is as simple as black and white.”
Or at least, that is what’s the lawyer’s art can help the client see.