There is never a good time and it is never easy to deliver bad news to clients. Unless you have a 100% success rate, at some point you will be the bearer of bad news.
Here are some tips for making a bumpy ride just a bit smoother.
Pick the Right Clients
I have written extensively about the importance of choosing the right clients. If you have the wrong clients, they will be unsatisfied with good news, they will be furious with bad news, and they will file an ethics complaint if they feel like it.
There’s a pattern there, and it bears repeating: pick the right clients. Don’t get me wrong, no client wants to hear bad news. But if they are a rational human being, they should be able to handle it.
Here’s an easy way to screen out clients with red flags: imagine telling that their case just resulted in the worst outcome. If you cannot imagine delivering that news to that client, then don’t represent them.
Create Realistic Expectations from Day One
Regardless of how confident and competent you are, it’s our job to explain the potential outcomes of every case. That includes the bad outcomes.
From the moment you start down the path of an attorney-client relationship, you have to explain all of the options and outcomes for three reasons:
- Yes, it’s your job.
- It will help weed out potential problem clients. If a client balks at the hypothetical scenario of things going south, just imagine how they will react when things actually go south.
- When you walk through the options, that should help your clients choose an option that represents their comfort level with risk. In other words, you should be minimizing the potential for a surprise announcement that their case just exploded (in a bad way).
Step 1: Make Sure the News is Actually Bad News
This seems obvious, but be sure there is actually a fire before you pull the fire alarm and tell your client to stop, drop, and roll.
For example, opposing counsel loves to huff and puff and say things like “I don’t think that’s gonna work, but I’ll see what my client says.” If I had a dollar for everytime a client magically disregarded opposing counsel’s advice, I would have like a hundred bucks.
On top of that, if you relay that information to your client, all you can do is tell them to wait until you get a formal response. In that case, you might want to wait before causing some potentially unnecessary stress to your client.
Admittedly, whether or to pass that type of information is a judgment call—depending on the scenario and your client. But if your client tends to panic, it’s probably better to wait to get an actual response, with an actual reason, before floating the hypothetical “I don’t think it’s gonna work.”
Step 2: Get Your Client in the Office or on the Phone
Email is not an option for delivering truly bad news; unless that is the only way to communicate with your client. Email is impersonal, not conversational, and fails to get the job done.
I recently had a client that was only available via email. With that in mind, I made the decision to deliver some bad news via email. It did not go well. This torpedoed our working relationship, despite my efforts to pull it back from the abyss.
The bad news that created the rift, and the rift grew bigger because of the delivery method. You cannot explain things in an email the same way you can over the phone or in person. By the time the client had finished reading the email (and responded), they had created their own narrative of how things went wrong and why it was all my fault. If this conversation had occurred over the phone, I could have attempted to course correct before it was too late.
Step 3: Empathize
Do not be a robot. When things go bad, it is ok to show your emotions.
Clients want results, but they also place high importance on an attorney that is going to fight for them. Even if the case doesn’t go his or her way, clients want to walk away knowing that they (and their attorney) threw some punches and made sure the client’s voice was heard.
On top of that, they want to know from you if they got a fair shake. If the other side sucks, or if the court did something unexpected, tell them that. And it’s ok to tell them “I didn’t see this coming—the other side has reached a new low” or to say “I can understand why the court reached that decision, but I don’t agree with it.”
Step 4: Come Up with Options and Recommend a Plan
Keeping bad news from your client is a terrible idea. All lawyers have a duty to keep clients informed about their case. Aside from that, the more common rookie mistake is delivering bad news and then saying, “I’m not sure what to do, and I don’t have any options for you to consider.” Unless the bad news is a final decision from the United States Supreme Court, there are always options.
If you have done a good job up to that point, your client should already be prepared for the possibility of this bad news. On top of that, you hopefully explained to them this could happen, and if it did, there were some other options to pursue.
With that in mind, work through the options—including the potential costs—before talking to your client. Admittedly, this is a delicate balancing test because you cannot (and should not) withhold news for days while you try and figure things out. But you can certainly take a few minutes and think through the options before talking to your client.
Be sure to provide an estimate of the potential costs for each option. Most clients are not Fort Knox, so even if appealing feels like the right thing, they may not want to pursue that route for thousands of dollars. Given that something bad just happened (and your client just literally paid for it), you will want to be sensitive to the costs moving forward.
Most importantly, recommend which option your client should pursue, in light of the costs, their goals, and whatever just went wrong. For example, if you were smacked down by the judge, immediately bringing in an expensive new motion might not be the best move.
Step 5: Put It in Perspective
A bad decision from the court, a surprising development, or even unexpected negotiations (or lack thereof) are generally not the end of a case. It’s your job to remind your client of that fact. You may have temporarily gotten knocked off course, but at least you still know what your destination is.
Make the client understand that they have not lost the case. Explain why the setback happened. Again, as noted above, hopefully you already prepared your client for the possibility of bad news.
If the news is truly unexpected, explain why, and why it is a roadblock, not the end of the road. For example, a large part of my job is negotiating settlements, both for plaintiffs and defendants. It is not unusual for my clients to make an offer and get stonewalled by the other side. That is certainly not my preferred response, but it is not unusual. And when it happens, I tell my clients “we talked about how this might happen, and now we need to take a different approach.”
The bottom line is that your client needs to understand the big picture. Most pieces of bad news are bumps in the road, not the end of it.