When a lawyer conveys bad news to a client, the lawyer worries not just about the news itself but about the resulting chain reaction: Will this client still trust me? Will this client think that I’m incompetent? Inadequate? Unprepared? Will this client want to continue to work with me? Few of us move far enough beyond the underlying worries to consider whether our approaches to delivering bad news are “successful,” whatever “successful” might mean in the context of client communication.
Two years ago, I came across a book by Professor Marjorie Corman Aaron titled Client Science: Advice for Lawyers on Counseling Clients Through Bad News and Other Legal Realities (Oxford University Press, 2012). Professor Aaron based this book on her experiences in teaching a client-interviewing course in which she used actors to role-play clients in a final simulation exercise requiring her students to deliver bad news. Over time, she carefully catalogued the actors’ reactions and suggestions to improve the students’ abilities to convey bad news while maintaining client rapport. In writing this book, Professor Aaron also applied research and conclusions from Bad News, Good News: Conversational Order in Everyday Talk and Clinical Settings (University of Chicago Press, 2003) by University of Wisconsin sociologist Dr. Douglas W. Maynard. The scholarship in these two books, informed by my own experience in working with clients and in studying client interviewing and counseling, leads me to believe that lawyers can learn to deliver bad news more effectively.
According to Professor Aaron, at the conclusion of a successful “bad news” conference, the client continues to feel a connection to the lawyer, fully understands the information, maintains confidence in the lawyer’s competence, and still believes that the lawyer will be a zealous representative. A successful conference, indeed!
Setting the Mood
Before turning to a proposed three-step technique for conveying bad news, let’s think about context. Delivering bad news is not appreciably more pleasant than receiving it, so lawyers must be prepared to participate in uncomfortable conversations. The lawyer must not only understand the facts and applicable law, but also be emotionally ready to convey negative news and respond to the client’s reactions. The lawyer must demonstrate both resolve and empathy. Of course, the strength of the client’s reactions may be affected by expectations. Long before this “bad news” conversation, the lawyer must not overpromise results or underestimate risk. If the client begins with unreasonable expectations, then the bad news will be exponentially worse.
Three Steps of a Bad-News Talk
Taking this three-step approach to conveying bad news to a client won’t change the outcome of the case but may increase the likelihood that the client nevertheless will be satisfied with the legal system’s operation.
Forecast or preface the bad news up front, with sensitivity. Use direct, but not blunt, language that is not misleading in any way.
Go straight to the point, directly to the bottom line, without stalling or wrapping the conclusion in explanation.
Continue with the explanation: “Let me explain how the court reached its decision.” Provide a longer explanation, carefully tailored to the individual client.
Some lawyers are tempted to deliver bad news impersonally by professional letter, via email, or through voice mail. These may be reasonable choices in some circumstances, but clients are almost certainly more satisfied with in-person meetings or personal telephone calls. Of course, anything conveyed orally can then be confirmed in writing.
Structuring the Communication
Now we turn to the substance of the communication. Initially, think about how we approach a court’s written decision or opinion. Once we are beyond our first week of law school, most of us turn directly to the last page to satisfy our immediate need to know what the court decided. Only then do we go back to the beginning, happily or reluctantly, to learn how the court reached its conclusion. Now imagine a client sitting in the lawyer’s office, anticipating some kind of news. It turns out that “conclusion first, explanation later” works best for the client, too.
The first step in the three-part conversation is to forecast or preface the bad news up front, with sensitivity. We seek direct, but not blunt, language that is not misleading in any way.
Here’s our hypothetical: Suppose that you brought a large collection action for your client against John Smith and John Smith LLC. Your plan was to “pierce the corporate veil,” and the facts that emerged during discovery gave you a decent argument under current law. This morning, you received the trial judge’s ruling on your motion for summary judgment. The judge agreed that the case was appropriate for summary judgment but ruled that you did not prevail in your legal argument. The court dismissed all claims against John Smith personally, with prejudice. The court’s opinion is 25 pages long.
Step One. How would we preface this bad news? How can we help the client be ready for the bad news? Perhaps with words as simple as these: “We’ve been waiting for the judge to decide our motion. This morning, I got her decision and I’m afraid that the judge didn’t see the situation our way.” Now the client knows that what’s to come is bad news, and you have given the client a chance to get ready.
Step Two. The next step is to go straight to the point, directly to the bottom line, without stalling or wrapping the conclusion in explanation. “You remember that we argued that the facts of the situation aren’t really in dispute, and that with those facts, you would be entitled to collect the debt from Mr. Smith personally, not just from his defunct corporation. The judge didn’t go along with our arguments and decided that we cannot collect the debt from John Smith. This means that we can’t continue to seek the money from John Smith himself, only from the corporation that we know doesn’t have any assets or money.”
Step Three. Now you’ve told the client the bad news in as rapport building a way as possible. Time to continue with the explanation: “Let me explain how the court reached its decision.” And, at that point, you would provide a longer explanation, carefully tailored to the individual client.
In summary, the three steps to deliver bad news are a preface, then a succinct statement of the bad news, followed by the explanation. You may need to convince the client to listen to the explanation, but at least the client will not be distracted by wondering, “so, what’s the bottom line?”
Giving the Client the Big Picture
Professor Aaron’s book contains a number of excellent suggestions to incorporate into this discussion. One that particularly resonated with me has to do with the client’s perception that the bad news is not “fair.” Lawyers recognize that many clients believe that the law that supports their case is “fair” and, conversely, that the law that undermines their case is “unfair.” Professor Aaron suggests that we either banish the fairness myth or locate the reality within the myth. I personally believe that the latter option, if available, is more rapport building and understandable by clients. When we locate the reality within the myth, we basically translate the legal system for the client: we explain why a law, or a rule, exists, and we show how the law might be justified in a broad sense. So, going back to our hypothetical collection matter, we might explain:
Gretchen Viney, U.W. 1978, is a clinical professor and director of the Lawyering Skills Program at U.W. Law School. She maintains a private practice in Baraboo.
“This country encourages free enterprise and capitalism, which means that it wants people to create new businesses. The corporation system was developed in part so that, if a business fails, the business owner loses the business but not everything else. So, when people deal with a corporation, the personal assets of the business owner are not involved; only the corporate assets back the deal. Sometimes, in a situation when the business owner tricks people, or doesn’t operate like a corporation, then the law lets the owner’s assets be treated like they are assets of the corporation.
“In your situation, we argued that you had been tricked, and that John operated like an individual, not like a corporation, but the judge didn’t agree with us. The judge decided that the law’s policy to protect the personal assets of a corporate business owner, like John, was the stronger argument. In your situation, it’s frustrating because it seems like the law gives a bad result, but in other situations, the law protects regular people from losing everything when their good business idea doesn’t turn out to be so good after all.”
Does this explanation make the client feel better? Maybe not, but at least the client understands that the applied law has a rationale and is not simply random.
Predicting a Negative Outcome
Sometimes, lawyers deliver bad news in advance. That is, the lawyer’s research and experience shows that the client’s position, or intended position, will most likely lose. Delivering this kind of news is difficult because the client may feel that the lawyer is arguing with or acting adversely to the client.
In these situations, Professor Aaron suggests a three-step discussion. First, start with the client’s side and explain the best facts and arguments you have that favor the client. Then, tell the client the facts and arguments that the opposition may make. Finally, explain why you have concluded that the other side will most likely prevail. By listing your client’s best arguments first, you show the client that you know the case and are able to state it persuasively. The client then will continue to listen as you summarize the opposition’s side, and will be more likely to also listen to your comparison and conclusion at the end.
As lawyers, simply changing the order of the conversation may make all the difference in the way the client hears the information and responds to it. When clients hear us say first that the other side will “win,” the client most likely will argue or become frustrated. After all, many clients believe that lawyers can void contracts, ignore laws, and take whatever position seems pragmatic. When we start with the client’s arguments and segue into the opposition’s, the client listens and may respond differently.
Even with the best of technique, lawyers don’t like giving bad news and clients don’t like receiving it. And, of course, our clients are not actors helping a law school professor with a counseling course. Nonetheless, the lessons we take from Professor Aaron’s studies, informed by our own experiences, may help us worry less about how our clients view us after a “bad news” conference, and give us added confidence that we can present bad news in such a way that clients will continue to trust in and work with us.