This is one of the most challenging communications issues that new lawyers face — really, that any of us face. Something has gone wrong, there’s an adverse ruling, or someone made a mistake. How do you deliver that news?
Whether you need to inform the client or a more senior lawyer, the process is largely the same. (Why? Because every other lawyer in your firm is your internal client. More on this another day.) For ease of reference, I’ll write about this process as an attorney-client communication.
- Let your client know you have something to discuss and ask for the amount of time you expect the conversation to require. In other words, don’t call and let the news dribble out while your client is checking her watch and needing to get to another meeting. Elementary, but critical: “Is this a good time to talk? I’ll need about 10 minutes of your attention.”
- Provide any necessary background. For instance, “Stan, you probably remember that we filed a motion to compel a few weeks ago so we can get documents about XYZ Corp.’s finances.” If there’s any confusion about the background, explain.
- Spit out the news you need to convey. “Stan, the judge has ruled against us.”
- Explain what the news means. This is, of course, the crux of the conversation. Two things may happen after you spill the news, depending on the magnitude of the news: either the client will be silent and wait for you to explain, or she may be angry. (Frankly, the former may be more difficult to handle.) Unless you (or the firm) made a mistake, do not apologize. Do empathize.
- If there’s a solution needed, or if logical next steps exist, explain what they are. Can you move to reconsider? Knowing your judge as you do (and you do, if only by reputation, don’t you?) would you recommend such a motion? How can you accomplish damage control? This is the most important skill in transmitting bad news, in my opinion, because it’s most often overlooked. Things do go wrong, but when they do, you want to be the person who has options to suggest. Be sure you’ve thought through what you’re proposing because you’ll lose credit for any “solution” you put forward that may create additional problems unless you’ve thought them through and have a credible risk/reward explanation.
Most of all, remember to keep breathing. You’ll probably have some really bad news to deliver in your time, and keeping it in perspective is useful. Learning from your mistakes is imperative. Depending on the magnitude, almost everyone will forgive one mistake.
But in law, two strikes likely means you’re out.