Originally from Alternatives to the High Cost of Litigation

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Professor Aaron comments that this piece, excerpted from: “Bad News and the Fully Informed Client,” the first chapter of her book, Client Science, addresses the lawyer’s challenge when counseling clients where “bad” news—negative, pessimistic or unwelcome developments or analysis—must be conveyed, whether or not within an ADR process. “As a mediator of civil cases, I suspect that mediation involves a higher than average percentage of cases involving ill-counseled clients or ‘difficult clients’ who may fairly be characterized as ‘counseling-resistant’ despite the best efforts of skilled lawyers. When the lawyer explains ‘bad news’ about case developments or likely outcomes, he risks the client’s suspicion or accusation of less than zealous advocacy. While a mediator can assist with client communication when legal circumstances are grim, counsel are obligated to ensure their clients are well informed of realistic expectations when exercising autonomy and self determination.” 

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Difficult and Tricky Road to Bad News Delivered Well

On this less than sunny day, you represent a plaintiff facing a defense motion for summary judgment, and, in a different case, a defendant who wants desperately to obtain summary dismissal of a personal fraud claim against him. In both, you see a low probability of success based upon your thorough review of the evidence, recent case law, and the judge’s track record. You now strongly believe the plaintiff-client’s case will be lost on summary judgment and the defendant-client will face the fraud claim at trial. For both clients, you are not entirely optimistic about their chances of success at trial. You anticipate client anger, sadness, frustration, and resistance to this conclusion. When meeting with either one, your goals are that:

1. The client continue to feel connection, trust, and loyalty in his relationship with you, despite the bad news;

2. The client fully understand the bad news—your unfavorable conclusions, their basis in reasoned analysis, and how they impact his legal case and personal or business circumstances;

3. The client maintain confidence in your competence—the meeting would be unsuccessful if the client came to wonder whether a “better lawyer” would have reached a more favorable conclusion; and

4. The client continue to believe you will zealously represent him—the meeting would be unsuccessful if the client came to doubt whether you remain fully on his side and will fight for his cause.