Bearing Bad Tidings [or When the Truth Is Awful]
By jennifer j. rose
For every case that's won, another will be lost. The worst lawyers sometimes generate winning verdicts, and even the best lawyers lose cases. Unquestionably, losing hurts. And sometimes it hurts lawyers more than their clients.
Delivering bad news is much harder than receiving bad news. Even though the outcomes affect clients' lives, property, and relationships, clients are often better prepared to deal with adverse rulings and misguided judges and juries than are those who deal with the system every day. You've lost face, and now your reputation as a winning lawyer is at stake.
Some clients, such as executives and frequent litigants, chalk it up to the cost of doing business. Others, with less contact with the legal system, may not be as well prepared to lose. If you've worked with clients long enough, you should have a sense of how they'll react to an adverse outcome.
As a good lawyer, you evaluate the case at the outset, give the client a reality check, outline the risks of settlement and trial, and don't oversell the case. You're candid about possible outcomes. You promise only to do your best. But then you lose and it's time to break the news. This is when tact and professionalism are more important than ever. Bad outcomes demand more of a lawyer's talent than do winning verdicts.
Take a deep breath, and, if the news is really bad, contact your client immediately. It's imperative that the client learns the bad news from you rather than from other sources. Acknowledge the loss, and let the client know that you care about the result. It's all right to tell the client "We did our best." There's nothing wrong in saying "I'm sorry." Discuss what the next steps and strategies should be, along with the risks of each: accept the decision and move on; post-trial motions; further negotiations; appeals; asset protection; jumping bail and fleeing to Paraguay. This isn't the time for assigning blame to the client or yourself —uttering should'ves and could'ves and if onlys —and it isn't the time to crack jokes. More than ever this is a time for sensitivity and understanding.
When the client hired you, you signed on as part of the team. You're still a team when the results are adverse. Losing a case doesn't always mean losing a client or a client's confidence in your skills as an attorney.
jennifer j. rose is editor-in-chief of GPSolo magazine. Contact her at email@example.com.