While technically the client was the one who “lost,” it still felt like an intensely personal defeat when the trial judge decided against us in a short and almost incomprehensible endorsement. That loss taught me that sometimes even my best was not good enough because of all the unpredictable factors at play in litigation. It was a hard pill to swallow.
What followed was even harder. We had to tell our client — a lovely person who was deeply invested in the case and had personally attended every day of the trial — about the loss.
Nothing in my career to date had prepared me for that type of conversation. Because so much of our focus as lawyers is on winning, whether in court or by otherwise achieving the best result for our clients, we tend not to talk about losing.
Having to tell a client about a loss is uncomfortable at best; understandably, it is not the sort of conversation that senior counsel wants juniors to shadow them on, nor are there any CLEs directed at how to lose well. Yet, handling a loss in a tactful and appropriate manner is a critical skill as a lawyer because no one can go through his or her entire career with a perfect record.
Before I had to have this conversation for the first time, I was too shy to ask for advice in person, so I asked Google instead. Through all my reading, I found that there are a few key principles that apply across all areas of practice:
Manage expectations from the outsetIt is a lot easier to deliver bad news if the client already knows it is a possibility. When seeking instructions or discussing legal strategy, it is important to have a conversation about realistic outcomes and risks, including the potential for an adverse costs award if it is a civil litigation.
Prepare for the conversationI would not call a client to ask for instructions to bring a motion without thinking about what I was going to say in advance. Knowing that delivering bad news would be even harder for me, I made some notes and thought about how I was going to frame the conversation before picking up the phone.
Don’t delayAs uncomfortable as the conversation is, it is worse if you have to follow up the bad news with an explanation of why it took two weeks to deliver it.
Do it in personThere is a lot of room for miscommunication in e-mail, while a live conversation (on the telephone or in person) will help you to better address the client’s concerns and questions as they arise. It also gives you more opportunity to be empathetic and to underscore that you are on the client’s side. Still, because people tend not to absorb bad news on the first run-through, it can be a good idea to follow it up with a quick note summarizing the discussion.
Be truthfulWhile it is tempting to obfuscate the bad news in legal jargon, don’t. Be clear, direct, and factual in setting out what happened. Above all, provide an explanation for the outcome and make sure you answer any questions the client may have.
If you made a clear mistake like missing a limitations period, own up to it, then skip ahead to the final point: Bring a solution. If you think there are areas where you could improve going forward, chalk that up as a lesson learned, but do not speculate to the client that if you had made argument x instead of y, you may have won; that just inspires doubt that may not be merited. Stick to the facts.
Walk the lineAfter an unexpected loss, I certainly have felt like the judge or jury was wrong or stupid for not seeing things your way. Going into a colleague’s office to vent is a perfectly understandable reaction, but you should let go of your anger or frustration before breaking the news to your client.
You want to remain professional and say things to your client like, “The judge seemed to have his mind made up before hearing the argument,” rather than calling him a moron who refused to let you get a single argument out. Not only does the latter approach make you seem emotional and rash, but it may make your client more reluctant to go back to court even if it is the appropriate course of action (since it is run by morons).
Bring a solutionBecause the initial conversation should occur promptly after getting the bad news, you may not have time to fully formulate a solution yet. Still, take a few minutes to think of options. Is this case ripe for appeal? What are the best next steps? Do not leave the client alone to mull over the bad news without doing something to create optimism or find the silver lining.
Although I hope to steer clear of any bad news in 2016, difficult conversations are inevitable. My first resolution is to avoid bad outcomes altogether. If that fails, then this year I resolve to handle them as honestly and professionally as possible, so my clients will still want my counsel going forward.
Guest columnist Zohar Levy is a lawyer at Lerners LLP in Toronto, with a broad practice ranging from medical malpractice defence to municipal law.