Unless you’re Kevin Lomax in ‘Devil’s Advocate’, there is a strong likelihood that, at some point, you will not receive the result that you and your client had hoped for, at which point you’ll have to be the bearer of some bad news. But, even if that unfortunate event leads to a final, negative determination in the case, you’ll want to deliver bad news in such a way that you can preserve the relationship with your client, either for purposes of securing future work referrals, or in order to maintain a good working relationship moving forward in the case.
There are some general tips that you can utilize in relaying bad news that, if they do not remove the sting, they will certainly soften the blow, as follows:
-Be the first to deliver the news, so that your client isn’t blindsided, hearing from someone else, or through a court notice.
-Tell the truth.
-Be clear and direct about what has happened. Don’t sugarcoat the situation, or leave the client with a potential misunderstanding over what has actually happened, or about what could happen.
-Deliver the news in-person, or via telephone. Don’t email.
-Put yourself in the client’s shoes. Acknowledge their feelings. Use verbal or physical cues to relay your understanding that this is a difficult situation: Lower your voice. Listen intently. Nod.
-After you relay the news, stop acting like a lawyer for a second, and let your client take it all in, and vent, if necessary. Remember that your client does not have the depth of knowledge of legal situations that you do.
-Keep in mind, however, that different people react in different ways. You may assume that a client will view a small reverse as a major setback; but, that may not be the case. Don’t let your expectations psyche you out.
-At some point, you do need to take control of the situation, and lay out a plan to manage the case moving forward, or to conclude the representation, if the case is at an end. Whatever you and the client agree to do as a plan for moving forward, make sure to follow-through on it.
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Keep in mind that you can work to control the client’s reaction to bad news by the way in which you lay the groundwork of the representation. If you’re transparent about the information you process within a case . . . If you educate the client on different outcomes to actions you will take . . . If you prepare the client for various contingency plans based on certain results . . . If you underpromise . . . If you stay on top of the case, and contact your client with regular updates, not just when bad news comes in . . . Then your client is more likely to understand that their claim is a process, and that there are steps and choices to be made along the way. An educated client, who understands that a legal case is often a journey, with fits and starts, will be better prepared to take bad news, and will have a better understanding of the larger construct in which bad news is delivered.
The most successful baseball pitchers are able to succeed, in large part, because their deliveries contain the minimum of effort, and because they can repeat those deliveries consistently. It is the same thing with the successful lawyer, who develops and implements consistent client education strategies, such that effort expended in delivering information respecting turnabouts can be significantly reduced, when both attorney and client have a deeper understanding about the process. Although it is impossible to control results that are ultimately dependent on the reactions of others, lawyers can exert a significant amount of control over process, especially as relates to the management of the attorney-client relationship.
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Of course, if you’ve screwed up, then it’s time to call your malpractice carrier.