Delivering Bad News to Clients

Katherine Mikkelson

“We lost the motion for summary judgment.” “The agreement with the service provider fell through.” “The opposing side rejected our offer.” While you may be personally adept at handling losses, communicating the setbacks to your client may be much harder. Delivering bad news is tough. But if you adhere to the following guidelines, you’ll make swallowing a bitter pill a bit easier for everyone.

 

  1. Manage expectations in the first place. Your client looks to you for advice. Part of your job entails alerting the client about what could go wrong. Ted Hirt, a former Department of Justice attorney, recommends sit-down meetings with the key stakeholders, at the beginning of the process. “Early strategy meetings should convey realistic scenarios, including what could go wrong. Talk candidly about the chances of not prevailing in litigation or a proposed policy outcome,” says Hirt. “Discuss the worst case scenario too, including the options for moving forward and alternative strategies.” As counsel, you want your client to walk away knowing all the available outcomes including the less than desirable ones. Summarize the main points touched upon in writing, with limited distribution given the privileged nature of the communication. A client that knows every possible result from the outset can never claim that he or she was not appropriately briefed.
    Also, at the outset of a matter, an attorney should listen carefully to a client’s goals and frankly discuss the legality or legal ramifications of a particular course of action. Richard Melnick, Associate County Attorney for the Montgomery County Attorney’s Office (Maryland) makes the distinction between that which is a legal decision versus a business decision. “Explain to the client that you will provide advice regarding the legality of a particular strategy, any legal ramifications or risk exposure related to an alternative that is otherwise legal, and the comparative pros and cons between various alternatives.” After that, Melnick says the client is responsible for determining and selecting which option best meets the client’s needs, interests, and desires (i.e. making the business decision). In an organizational setting, the attorney also needs to identify which representative officers, agents, or employees constitute the “client” who has the authority to make the business decisions, as well as to whom the attorney/client privilege applies.
  2. Determine who is the best person to deliver the news. Even though you may have worked on the case for 18 months, you might not necessarily be the best person to communicate the bad news to a client. A more impartial higher-up might be a better choice. Julie Halatek, a project analyst with the North Carolina Department of Health and Human Services, agrees that deciding who delivers the bad news should be considered in every instance. “Even if the answer ends up being almost immediately obvious, it’s better to be cautious than to be rash.”
  3. Determine who is the best person to receive the news when your client is an organization. Be conscious of chain of command, especially with large organizations. Ted Hirt recommends that the General Counsel (or the organization’s chief legal officer) be informed so he or she can brief policy staff or program staff as soon as feasible. But he also cautions against a knee-jerk reaction of calling a meeting where everyone and their brother might be invited. As Hirt observes, “You have to balance need-to-know versus the potential of compromising privilege.”
    Halatek offers additional pragmatic advice. Her office requests a contact person for every matter her agency handles. “This way, we have one established person through which all communication flows. We don’t have to worry about when to call someone different or not, and the client is able to choose who to list as the contact person, which ostensibly means the client will pick someone who can be trusted to promptly relay information.” This approach also helps ensure that the people familiar with the underlying facts in a matter are made available to address the issues in the case, including developing the plan of action for next steps after the bad news. 
  4. Deliver the news promptly and in person if possible. Delivering bad news is not fun, but the more you procrastinate, the worse it gets. You do not want your client to hear the news from a secondary source who may garble or overhype the message. And with high profile cases, you definitely do not want the media to be the source. Halatek says that delivering bad news promptly is key. For those public lawyers who have far flung clients in different cities or states, where in-person communication is not possible, phone or Skype is preferred over email. Says Halatek, “I don’t often have the ability to deliver news in person, but I almost never email. An email can’t ever convey emotion and tone in a way that talking to someone can, and can be cold and impersonal — which is definitely not what you want, especially when delivering bad news.”
  5. Tell it like it is. Now is not the time to sugarcoat. Don’t use legalese or flowery language in an attempt to diffuse the communication. If your client just lost a case, relay the information in a professional manner using lay person terms. Stephanie Shark, who has held numerous public sector roles including DOJ mediator, criminal prosecutor, FBI agent and counsel, child advocate, and congressional liaison, advises attorneys to stick with the facts and remain unemotional. “If your client becomes emotional, hysterical, or irate, you get calmer and quieter. Sometimes, they just need to vent. When they are done, as long as you don't negatively react, they will often calm themselves down to hear what you have to say.”
  6. Have your plan for dealing with it in place. Always offer options and solutions, preferably during the same meeting when the bad news is delivered. Prior to meeting with your client, it’s essential that you engage in intelligent analysis and develop strategies for a positive next step, rather than focusing on the negative. Shark states, “Yes, bad news hurts. However, a professional is getting paid for options, suggestions and direction. Keep them focused on the future and give at least two options so they feel empowered to make a decision that works for them (even if both are less than desirable). It is important to let the client know how to keep moving forward. Bad news has a tendency to stop the thinking process. Refocusing them on a new direction and solutions changes the atmospherics.” Shark also advises attorneys to remain confident. “If you exude confidence and express a way to move forward, a client is more likely to believe you, remain calm, and jump on board with what you have to offer.”

Conclusion

Bad news is like taking out the garbage, no one really wants to do but it has to be done. Michelle Garcia, a prosecutor in Albuquerque, New Mexico, sums it up as follows: “Lawyers have a unique position of trust where non-lawyers often really want and need to hear bad news from us instead of anyone else involved with a situation. Keeping an open line of communication pays big dividends. If you have kept someone in the loop throughout a case, they will know when to expect to hear from you and have realistic expectations about what the range of outcomes should be.”
 

Katherine Mikkelson

GPSLD Associate Director

Katherine Mikkelson is the Division’s associate director.