Delivering Bad News

By Richard S. Amador

If you haven't had to do it yet, you haven't been practicing law very long. Sometimes bad news comes in the form of a motion or proceeding lost, or a negotiation imploded. Sometimes it's as simple as the fact that you?or someone you are responsible for?made a mistake. No matter the circumstances, delivering bad news to a client is risky business.

How you go about conveying unpleasant developments reflects on you and your reputation. It may mean the difference between future work and no work, between prompt payment and a disputed bill, or between an amicable parting of the ways and a malpractice suit.

However, delivering bad news can also be an opportunity if you study the lessons offered here. Instead of wallowing in despair at the prospect of a client's negative reaction, think about using the situation to market your mettle and prove your worth as a trusted counsel.

Don't Pass the Buck
Don't blame the secretary, your associate, your witness, or your dog. If one of your subordinates made a mistake, it is still your responsibility. Trying to shift blame will only detract from your credibility. If the bad news was due to a third party's actions, such as a judge or jury who just didn't get it (which is probably also your responsibility), avoid the urge to rant about that party's shortcomings. The client will probably do that anyway. Leading that parade will only make it look like you are trying to cover up for yourself.

Have a Road Map and a Solution
This is critical. Be ready with a crisp explanation of the ramifications of the bad news and at least one proposed solution. Clients expect lawyers to be problem solvers first and foremost. Smart lawyers can avert many a client-relations fiasco with a good plan for addressing the consequences of the bad news. Be prepared to walk the client through how your proposed solution will work. The client's confidence will quickly expire if, in response to questions, it becomes apparent that your proposal is little more than a Hail Mary pass.

Anticipate the Client's Questions
Your client will likely have numerous questions about just how bad the bad news is, and what the prospects are for mitigating or reversing the damage. To the extent you can, it is good to think through what these questions might be and how to address them. On the other hand, don't let your lack of complete information keep you from quickly sharing the bad news with the client. There is no harm in telling the client that you will promptly get a more detailed answer out in a follow-up email.

Get Some Feedback
If your heart is racing at the thought of delivering the bad news, your body is telling you something important: Wait! If it is at all practical, before you deliver the news get some quick feedback by talking to your partner, trusted associate, or mentor. Not having as direct a stake in the outcome, such a person may have good insights about a solution, issues you have not identified, or a better way to explain the matter to the client.

But Hurry
One of the worst things you can do is to hope the problem will go away or resolve itself. An otherwise manageable problem can easily get worse if you let it fester. Bad news is best delivered promptly. At least two of my clients have told me about outside counsel they fired for not telling them about a bad outcome until days or even weeks after the fact.

Grasp What the Bad News Really Means
The person to whom you report will very likely have to report the bad news to someone else up the chain of command in the organization. Part of your communication should be tailored to helping your contact person do this. Depending on the severity of the news, the contact person's job could well be on the line for approving your plan (or for entrusting you with the matter in the first place). So if the client starts firing sharp questions at you, do not assume that you've just become a scapegoat. Until proven otherwise, assume that the client is now experiencing the same lump in the throat that you did when you learned you would have to deliver bad news.

Pick Up the Phone
Bad news should be delivered in person if feasible, and if not, then over the telephone. You can better gauge your client's reaction, and your client can better gauge your character, face to face?or, if necessary, by tone of voice. All such feedback is guesswork if both sides' perceptions are limited to the written word. And use a landline?this is the worst possible time to have a "Can you hear me now?" exchange or dropped call with your client.

And If It's Too Late ...
Perhaps your associate or secretary didn't tell you about the problem until it was too late to fix it. Perhaps you lost the trial and this client has a one-strike policy with outside counsel. Or perhaps the bad news resulted when a client with short-term memory lapse instructed you to do something you advised against. In such cases, all you can do is be as professional as possible. Don't whine, don't beg, and don't make excuses. Remember that your reputation will linger long after you have left the scene.

For those of us who practice in large metropolitan areas, or who have the good fortune to enjoy good relationships with our clients, it's easy to think that one soured client relationship will have no impact on our success. But the opposite may be true. Your reputation follows you; it may take a while to catch up with you, but it will. Delivering bad news promptly bespeaks honesty. Offering realistic advice signals practical expertise. And providing effective damage control is the mark of someone who knows how to deal with adversity. If, no matter the circumstances, you always do your best work and always conduct yourself with integrity, good things will follow.

Richard S. Amador, a partner with Sanchez & Amador in Los Angeles, represents corporate clients in employment and business litigation.

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