Be the messenger (and don’t get shot)
As our readers know, the #1 cause of claims against Ontario lawyers practising in most areas of law is problems with lawyer-client communication.
Considering lawyers’ reputation for verbosity, this statistic seems counterintuitive, at least until you consider that some things are easier and more fun to talk about than others.
Fun to communicate with clients about: success (and our role in it); progress; winning; good news. NOT fun to communicate: failure (and our role in it); setbacks; losing; increase legal costs; bad news.
The risk: Failing to promptly and appropriately communicate bad news (and therefore, failing to take steps to mitigate setbacks) exposes lawyers to claims.
Uncomfortable delivering bad news? Here are some tips that can make it a little easier:
Do it immediately
When is immediately? The moment you understand the nature and implications of the unfortunate development. Do you now that a prospective client’s claim is unlikely to succeed the moment it’s been described to you at the intake appointment? Say so at that appointment. Have you just heard (or read) the words “motion dismissed”? It’s not going to be any less dismissed three months from now, and no, the client will not just forget you ever brought it… especially if you’ve also heard the words “with costs”.
There’s also a more personal reason to share bad news promptly: Carrying it around, undisclosed, in your own craw quickly accumulates an additional burden of anticipatory dread… it’s like a psychic burden with compound interest. Get it out and over with.
If your client doesn’t understand the bad news, you haven’t communicated it well enough. Do not obfuscate. Do not use words like “obfuscate”. Provide a simple, thorough explanation of the development, the consequences (including economic consequences) and the client’s options for proceeding in the wake of the development.
Be honest about your role
There are two reasons lawyers often hesitate to deliver bad news:
The bad outcome is in no way the lawyer’s fault, but he or she just doesn’t like bringing people down.
While a positive outlook and empathy for the client are laudable, the client has the right to the information, and the lawyer has the responsibility to deliver it promptly. Delivering bad news is difficult. It’s important to remember that internalizing your client’s misfortune doesn’t help anyone. Inform the client immediately.
Much more often, a lawyer delays the delivery of bad news because:
The bad outcome is, at least in part, the lawyer’s fault.
Making a mistake is embarrassing. Covering up a mistake is unethical. When something goes wrong as a result of a decision or action on your part, communication is key.
When communicating about your role in a bad-news outcome, be honest but professional. On the one hand, an effusive apology, especially where you have made an honest error, is over-the-top and may come back to bite you in the event of a claim. On the other hand, a dishonest or incomplete response makes a claim more likely. Consider the following tips:
- Give a simple, factual explanation of what happened: “we lost the motion, and costs were awarded to the other side.”
- Do NOT deflect blame: “we would have won if we hadn’t gotten Judge XX. She’s a lunatic.” Or “if you would have remembered to tell me about XX detail, I would have put it in the pleading and we would have won.”
- If asked why results were different from what you’d hoped for or predicted, give an honest explanation: “My interpretation of XX (point of law, precedent, statutory provision, contract term etc.) was incorrect” or “I believed that we had a reasonable chance of success, because of XX reason, and so I recommended XX course of action. Unfortunately, we were unsuccessful.”
If you describe your choices in clear and objective terms, and you explain why you made the recommendations and choices you did, your actions have a good chance of seeming reasonable to the client. This is especially true if you were careful, before taking action, to explain that success was not guaranteed and to describe all the potential outcomes, positive and negative, including costs consequences.
While the client may be upset by the bad news, you should attempt to provide a basic summary of his or her choices and options in light of the development. This will help the client to begin thinking beyond the setback. Let the client know that you will await his or her instructions.
Some people have trouble remembering anything that is said to them immediately after bad news is delivered. Be prepared to explain the client’s options again in a later conversation, after he or she has calmed down and has had a chance to absorb the information.
Await instructions (or worse)
Will your client terminate the retainer? Maybe, maybe not – but you have little control over the client’s reaction. If you made a small or honest error and the client terminates the retainer over it, he or she may be the kind of client who is not worth keeping. If your error could form the basis of a claim, you will also need to report the claim to LAWPRO.
If the client is a major or long-term client, and you have a track record of providing excellent service, appropriate communication of bad news is especially crucial. Long-term clients have a business relationship with you, expect honesty from you, and will often be able to put a mistake into proper perspective if their overall opinion of you is high. Handling setbacks appropriately, including by acknowledging your share of responsibility, may, in the long run, enhance your client’s trust in you instead of threatening it.
Regroup and de-stress
Lawyering is high-stakes, stressful work, especially when things go wrong. Once you have delivered the unpleasant but necessary message, reward yourself for doing the right thing by taking immediate steps to manage your own stress. Internalizing negative events helps no-one. Get out of the office and do something that makes you feel good.
A caveat: Two triple scotches and a pint of Ben and Jerry’s may make you feel good, but they won’t make you feel good about yourself. Lest you want to feel like a crummy lawyer AND a drunken sloth, find a non-destructive form of stress relief. Get some fresh air, play a game of tennis, talk the setback over with a close friend. Put it into perspective and move forward.
Learn from it
Dealing promptly with bad news doesn’t mean forgetting about it. Once the dust has settled, consider whether there are any lessons you might learn from the experience. Then file them away under “older and wiser.”
January 15, 2013 at 1:08 pm, Anne said:
I’m teaching a legal writing course where I have students to an exercise that includes writing a “bad news” letter to a client. Students often use “we”, “us”, “our”, language in describing the loss to their hypothetical client, perhaps in hopes of sounding more sympathetic. Yet this strikes me as a generally bad idea, especially if going any further than “we lost” and saying things like the Order in “our matter” or “our decision not to accept the offer”. As licensees, we follow client instructions, in the client’s matters, and at the end of the day it is the client’s win or loss.
There may be more room for imprecision in conversation, but I’d suggest that if I were a client who read: “we lost, and because of our decision to reject their settlement offer, the Court levied costs against us” I’d be asking counsel if “we” were splitting paying the costs 50/50.
I note in the tips above that you’re suggesting using “we” in breaking the bad news to clients, and I’m wondering whether I’m being too cautious, and this is recommended style.