Solicitors are often the bearer of bad news to their clients, but there are ways to deliver this information without damaging your relationship. Katharine Freeland reports
When Malcolm Brown (not his real name) was told that he was liable for a crippling tax liability on the family trust he had set up, he was angry and upset. He launched a claim against the private client firm that had advised him. Under the Civil Procedure Rules both sides were encouraged to mediate. In mediation it emerged that what had upset Malcolm so much was not the bad news itself (although it was hardly welcome) but the way the solicitor had delivered it – smiling.
Once the casus belli had been identified, profuse apologies were made. The solicitor admitted that he had been nervous. The case was dropped with no hard feelings. This anecdote highlights a truism that is nevertheless important: it is not just what you say, but the way you say it.
Legal services revolving around the individual, such as private client, medical negligence, children’s services, employment and divorce, are intrinsically linked to our family set-up and quality of life. As such, bad news stings. The rough and tumble of the corporate world rarely renders us so vulnerable as events in our private lives.
Empathy, kindness and the ability to ‘put yourself in the client’s place’ are prerequisites for practitioners in these fields. But even experienced solicitors make mistakes: ‘A frequent (though understandable) error that family lawyers can make in a divorce situation is to become moralistic and point the finger at their client’s spouse’s conduct to deflect any anger at the situation away from themselves – and also to make the client feel better,’ says Annmarie Carvalho, a family lawyer who now runs Carvalho Mediation and Therapy.
While it is helpful to indicate that you are on a vulnerable client’s ‘side’ through an empathetic approach, it is counterproductive to join them on a moral crusade. ‘Sometimes family lawyers can fall into the trap of fuelling distrust, often inadvertently. For example, saying things to a client along the lines of “it looks like your husband has £10k in his account that he didn’t tell you about. If he is lying about this, what else could he be lying about?” Instead of having the desired effect of protecting the client, talk like this can just inflame an already volatile situation and can lead to costly litigation,’ says Carvalho.
Expectations of what can realistically be achieved need to be managed from the outset.
‘If a clinical negligence report indicates that the case is unlikely to go ahead, you need to explain this right from the start,’ advises Deborah Blythe, who regularly handles ‘delay in diagnosis’ cases as head of the clinical negligence and personal injury team at Russell-Cooke. ‘Otherwise the situation is ripe for complaints.’ If a case has a marginal degree of success, the client needs to be told firmly, and more than once. That can be difficult for junior lawyers without the gravitas experience brings.
‘Bad news is easier to deliver if the client has already been warned of the risk that the bad news could materialise. Good litigators will be adept at managing expectations and warning clients as things go along of how matters might play out in terms of both optimistic and pessimistic assumptions,’ says Marc Keidan, partner at specialist litigators Cooke, Young & Keidan.
Face-to-face is best
When discussing sensitive information of utmost importance to the client, such as a report containing an estimate of life expectancy, or a court judgment over whether children should be taken into care, a face-to-face meeting is the best way of delivering unfavourable news.
‘In the case of vulnerable clients, who may be parents with mental health difficulties, you should speak to them directly and explain the judgment in terms they can understand,’ says James Sandiford, a senior associate in the children and education law team at Russell-Cooke. ‘Be direct, do not dress it up.’ Tone of voice is particularly important, especially when delivering news that could be devastating and life-changing. ‘No technical or mechanistic language,’ he says. ‘The client needs to feel that the solicitor is on their side.’ The risk of complaints can be mitigated by backing up everything that is said in a face-to-face meeting in writing.
‘Sometimes you feel like the harbinger of doom, but clients appreciate it when you are honest,’ says Jo Summers, a partner at private client firm PWT Advice.
Do not prevaricate
‘Sugar-coating’ the truth, or prefacing bad news with a long, involved preamble around the point, is to be avoided. ‘Some practitioners can talk for 20 minutes without getting the bad news out,’ says Jonathan Shankland, head of international private wealth at RadcliffesLeBrasseur. ‘Another mistake is giving false hope by suggesting remedial options that just won’t work. You sometimes see this with more junior lawyers, as it is tempting to try to make the client feel better. That can prolong the process of coming to terms with reality.’
Although it may be appropriate to empathise with the client’s anger and frustration, and express sincere regret at what has happened, there should of course be a clear line between empathy and an admission of error or negligence.
‘It is important never to make an admission of a mistake (or make an apology which could be interpreted as an admission) without first discussing with the firm’s complaints partner and, most likely, the firm’s insurers,’ says Keidan. ‘It is possible that a lawyer could feel emotionally invested in a matter and make an apology or an admission of negligence when in fact this was not objectively warranted.’
Do prepare thoroughly before the difficult conversation as the client will have questions that they want answered. If a secure relationship has been established with the client from instruction (for instance, seeing one instead of multiple practitioners) it is easier to be straight-talking.
‘I have seen cases where everyone feels hard done by,’ Summers says. ‘They have not inherited as much as they expected in a will for example, and are set on charging off to another law firm to launch litigation. You have to sit them down and explain that you can either split the estate between yourselves, or between yourselves and X number of law firms. That really brings it home to them.’
Time it right
Timing is crucial. ‘It is important that there is no delay,’ says Sandiford. Although it is best to deliver bad news face to face, other methods such as telephone can be used if arranging a meeting in person would keep the client in suspense for too long. Not every fact needs to be known beforehand.
‘It is acceptable to say “I wanted to let you know this without delay but we are looking into X, Y and Z or waiting to hear still on A, B, C and will let you know when more information is available”,’ says Keidan.
Sometimes your client may be halfway around the world, making a face-to-face meeting impossible. ‘Each situation needs to be judged on a case-by-case basis. WhatsApp or Skype can be a good option for some people, email for others,’ says Summers.
Think before you click
While email is easy and an essential tool, unlike the traditional method of dictating a letter to a secretary and double-checking the contents, it does not allow time for the practitioner to cogitate. ‘It may help to print out the email and read it aloud, or leave it overnight to review the next day,’ says Summers. Again, ‘tone’ is very important. This is not a time for the ubiquitous ‘please find attached’ scenario.
‘Don’t send a distressing report [by email] without understanding exactly what it says, especially if it examines issues such as life expectancy or an impact assessment of an injury on the client’s quality of life,’ says Blythe. She recommends warning the client of the content in advance by telephone, or asking whether they would instead prefer the report to be sent to a close family member. Emails should be sent well in advance of close of business so the client can reach you to discuss further.
A delicate balance is required between understanding the client’s needs and maintaining enough distance to remain objective; and if need be, in the ideal ‘secure relationship’, to gently point out ways in which the client is not helping their case. This is often a question of observing more senior lawyers in practice and learning from mistakes.
‘When you are a young lawyer it is easy to take things personally,’ says Summers. ‘It is not that you become cynical, but you learn how to retain empathy without becoming too involved.’
How to prepare junior lawyers
Currently the Legal Practice Course (LPC) prepares law students for diverse callings, from the corporate world of ‘all-nighters’ and management buyouts, to routine conveyancing or probate. Some practitioners believe that ‘soft skills’ should be prioritised more.
‘Soft skills are not an explicit requirement for the LPC,’ explains James Catchpole, director of legal practice at City University. ‘However they do feature in the training, in that the students learn teamwork, problem-solving and interview skills.’ He points out that the LPC is a nine-month course in which to prepare the student for the exacting environment of the workplace, so law firms need to be prepared to support and mentor their trainees and junior practitioners.
When the Solicitors Qualifying Examination (SQE) is introduced in 2021, the design of its second part, SQE2, provides an opportunity to recognise soft skills as important elements of legal practice. Where better to start than the art of breaking bad news? It is, after all, something solicitors do from the start of their careers until the end.
Katharine Freeland is a freelance journalist