In my last post I offered tips for lawyers to use when delivering bad news to clients. In this post, I’ll expand on those ideas and discuss additional techniques for effective attorney-client communication when facing setbacks in a case.
These tips are gleaned from a Client Science: Advice for Lawyers on Counseling Clients through Bad News and Other Legal Realities, a book written by Marjorie Corman Aaron, a Professor of Practice and Director for the Center of Practice at the University College of Law. (Full disclosure: I was given a review copy of this book.) This book aims to help lawyers learn how to better interact with their clients by providing practical tips for implementing effective communications skills in their law practices.
In my experience, delivering bad news to clients is one of the most difficult parts of practicing law. For that reason, the first chapter of this book was particularly useful since its goal was to provide strategies and techniques designed to help lawyers to effectively communicate with their clients about setbacks in their case, while simultaneously softening the blow and increasing their clients’ comprehension and understanding.
Forecast the bad news, then get right to the point
First, Aaron suggests that before delivering the bad news, forecast it at the very outset of your conversation, rather than launching into a complex and convoluted explanation of the situation in which you find yourselves. She suggests using language similar to the following at the start of the discussion:
I very much regret having to tell you of some recent developments that pose serious risks for your case. I am concerned about some legal hurdles that will make it difficult to achieve your goals through litigation, the way we thought that last time we met…
After doing so, succinctly deliver the bad news and then move on to discuss the current situation in a manner that is simple, to the point, and devoid of legalese. This discussion should include an explanation of the legal process, the issues presented and the risks faced.
Aaron emphasizes the importance of delivering the bad news up front. This is because delving into a convoluted and matter-of-fact discussion of the law without first prefacing the bad news can leave your clients feeling confused and upset. By dropping the bomb at the very end of your conversation, you risk alienating your clients by virtue of your perceived lack of consideration and heartlessness.
Break the bad news by summarizing the arguments of both sides
One technique that Aaron recommends when faced with the task of explaining to your client that the case has taken an unexpected turn and thus you no longer believe that your legal theory will prevail is to outline the strength of both party’s legal arguments.
We’ve all experienced a situation where a case suddenly takes an unexpected turn–such as when new, damning evidence has come to light or after a particularly disastrous deposition. When a case falls apart, the natural tendency is to emphasize the strength of the opponent’s position in light of the new evidence in order to ensure that your client comprehends just how dire the situation is and how difficult it will be to prevail.
Aaron recommends against that technique, since focusing on the strength of the opposition’s argument could erode your client’s confidence in your efforts. Instead, she suggests that you begin with a summary of the strengths of your position and then move onto your opponent’s position:
1) First, articulate the arguments you would make to the court or jury on your client’s behalf;
2) then move on to articulate the opposition’s arguments; and
3) finally, explain why you have concluded, in light of the applicable law, that the other side is more likely to succeed
According to Aaron, presenting information in this order allows you to fully outline the strength and weaknesses of both arguments while still maintaining your client’s confidence in your representation.
Give your client something to hold on to
Another tip Aaron offers when communicating bad news is to provide your clients with copies of cases where the factual scenarios are similar and the outcomes correspond with the expected and unfavorable outcome in your case. She explains that doing so allows “(t)he client (to) identify with another person who has a name, slipped and was injured, and perhaps faced a similar decision about whether to settle. Rather than talk about it, make it tangible. Give your client a copy of the case decision (or two) to touch, read and re-read.”
I’m not sure I agree with this particular tip. While I think that this sounds like an interesting proposition in theory, I can envision any number of ways that it could backfire. Your client focus on an irrelevant differentiating fact and hang their hat on that as a way of distinguishing the result in that case from your predicted outcome. Or, the client could focus on the higher settlement amount in one of the cases and then refuse to settle for less than that amount, even though the injuries were significantly different or the case was from another jurisdiction. The list goes on and on.
So, I’d be hesitant to use this particular technique, but then again, I’ve never tried it.