It is rare that everything works out for a client the way they wanted. Since litigation is unpredictable, setbacks and disappointment is practically inevitable. And so part of a litigator’s job is to manage a client’s expectations and to deliver bad news. Doing that requires some interpersonal human intelligence that they don’t teach in law school and that many people learn by doing instead of being instructed.

Why should you keep reading this post about delivering bad news?

Your client just lost the big case and you want me to tell them.
You googled “bad news” and this was the least sad thing to come up.
You want to see a stock image of two doctors talking to a patient where it’s unclear whether the news is good, bad, or neither, but where Will’s guess is that it is actually good since he thinks the patient is smiling.

The Kinds of Bad News Litigators Deliver

The most common form of bad news I deliver is that there is no case or defense worth pursuing. People frequently come to me because something terrible has happened - someone behaved poorly or broke an agreement or made an outlandish accusation. They need my help to right some terrible wrong. And many times, there is nothing to be done since the law does not fix every problem. Similarly, there may be a possible lawsuit, but the costs of the lawsuit may far outweigh the potential benefit. And so I need to tell them that there is nothing to do, which sounds bad since it means the bad guy wins. It can also be misinterpreted to suggest that I think the bad thing was actually fine.

Another kind of bad news is that the judge ruled against the client. Clients believe that they are right and the other person is wrong. And so if a judge rules in favor of the other side, something must have gone wrong. But the truth is that most decisions are not about who is good or bad or right or wrong but about discrete legal issues or evidentiary matters that are separate from the overall merits of a claim or that are more subjective than either side may acknowledge. Sometimes, too, judges get things wrong. Lawyers need to break this news to clients and it’s hard, especially when a client has already spent so much money and trusted their advocate and the legal system to do a good job.

A third kind of bad news is that the litigator made a mistake. It happens sometimes; the lawyer may have missed a deadline or incurred an unexpected expense or said the wrong thing. Clients are already in difficult positions sometimes and they rely on professionals to not to make their situations worse. But lawyers aren’t perfect and they make mistakes, too. Lawyers have to be up front about them.

Managing Expectations

Before delivering bad news, it helps to let a client know what to expect. This way, they will not be blindsided when an adverse event occurs. Doing this is tricky because, if a lawyer only shares worst case scenarios, the client may get too scared to proceed in situations where risks are low. They may also mistake a worst case scenario for a prediction of failure.

Still, just as a doctor warns a patient about possible side effects, litigators should let clients know about the many unpleasant possibilities in a lawsuit. It could be expensive, a judge could rule against the client, the client may end up with a worse result than they feared.

I find it is important to put this information in writing so there are no disputes later on if a client claims the lawyer hid this information or that it was the result of incompetence instead of a natural part of dispute resolution.

Delivering the Message

Having delivered a lot of bad news myself, here are some lessons I have learned.

First, I try to deliver the bad news promptly. I want the bad news to come from me. If a client hears the bad news from someone else, then I lose credibility and I look like I am oblivious or not helpful or, worse, hiding something. So as soon as there is a bad result, I start the process of figuring out how to deliver it and plan to tell the client right away.

Second, I affirm my commitment to the client. When a bad result happens, the client may feel hurt or alone. The judge and the legal system may have seemed to turn their back on the client and their story. And so I try to let the client know that I am still in their corner, even when things don’t go well. I tell them something like, “the judge decided the contract was not valid, but I believe you that it was an important commitment that you relied upon.”

Third, I try to put the bad news in perspective. Litigations may have setbacks along the way, but that may not necessarily mean the fight is over. And even if there is a loss in litigation, some things may be more important and it can be helpful to remind people of that rather than let them focus exclusively on the loss.

And when the bad news has to do with one of my mistakes (rare, but they have happened), I take responsibility and I explain the plan to make things right. That way, instead of focusing on the bad thing, I can salvage the client’s trust and focus on the work going forward.