Every attorney, from time to time, has to give a “bad news” speech to a client. This is when the attorney’s people skills really matter. I had to give that speech this morning. It’s never any fun, but it’s an important part of the attorney’s duties. It’s best done in person. The client has invested a lot of emotion – typically hate, not love – into the lawsuit. And when the attorney says, “Sorry, the evidence has not turned out to be the way we wanted, and we’re almost certainly going to lose,” that involves confronting an unpleasant fact. The best way to do it is to be direct and honest, and not to give in to the emotional reactions the client will offer in response to the bad news.
After doing this many times in my career, I’ve noticed that this reaction is no different than what you would expect in a sudden loss of love. Just as the loss of a loved one to death will set in motion a cycle of bereavement, so too will a client who has been fueled by hate feel the loss of an opportunity for vengeance with the same emotional cycle of bereavement.
It usually starts with denial. “That can’t be right. I know the evidence favors our side. I can’t believe what you’re telling me, it’s just not true.” Here, the attorney cannot back down, and must be firm in explaining that no, the evidence and the law are not favorable, despite all the efforts necessary to get to a better position than this.
Bargaining comes next. “Well, what if we found this evidence? Or this other evidence? Can’t you find a legal theory that gets me what I want?” It doesn’t exist, and that’s a fact that has to be confronted and incorporated into the client’s strategy. Again, backing down is not an option here. One kind of bargaining raises an ethical issue for the attorney – the client may offer to “find” evidence on her own that supports the case on her own, which should raise a big red flag for the attorney that this evidence will be manufactured. The ethical attorney will steer such offers of production to other attorneys and not leave the client the option of “finding” that evidence herself.
Anger follows that. Anger is sometimes directed at the object of the client’s hate: “My enemy is so awful! They’re terrible, terrible people and they set it all up this way so they could get away with this!” Sometimes, it is directed at the legal system: “It’s a terrible, terrible country we live in that lets people get away with this! The law is unjust and unfair! “ And most dangerously, it’s directed at the lawyer delivering the bad news: “You haven’t done a good enough job! You should have found the evidence that proves the case! Go back and find it, I know it’s there!” This is why it’s important to have prepared to break the bad news, because this requires engagement and confrontation – the client must be made to see that indeed, the attorney has done as good a job as could be expected, that the evidence has been exhausted. Typically, the client needs only to vent the anger, and if the response can be met on its merits, the anger will not be able to coalesce on a single point of danger to the attorney.
After anger comes despair. “Oh, it’s awful that I’m going to lose. What am I going to do? I’m helpless in the face of my enemy’s evil deeds and a terrible injustice will be wreaked upon me because the courts will not come to my aid.” The client here will be frozen and unable to decide what to do, wallowing in depression and sorrow at the loss. Here, the attorney needs to be active in dispensing advice, and compassionate as a counselor. Sympathize with the client and validate the client’s emotions, and steer the client towards the right decision. “I know it sucks. I want to win, too; that’s why I’m an attorney. But not every case is a winner, not even every case that deserves to win. I’ve been around the block enough to know that some cases you think are going to win, don’t. That’s where we’re at. Let me do my job and cut your losses.” If there’s time, you can give the client an opportunity to think things through on her own, to work through the rest of the cycle of grief in private. Men often disguise their grief and sorrow by needing to “talk it over” with some other advisor like a wife or a girlfriend.
Only after all of these cycles have been completed in the client’s psyche does she reach the final stage of the process, acceptance. “Okay, the suit is a loser. Dismiss it. Settle it. I don’t care – do what you have to do so I can move on.” Now, the attorney needs to move fast and make the dispute go away quickly, in the event that the client backslides and returns to a phase of anger, bargaining, or denial. Backsliding into grief is OK, because as long as the client has not issued a countermanding instruction – and a depressed client does not act at all – the attorney can complete the cycle and resolve the suit. If the client completes the emotional cycle, though, the client will have accepted the facts and stand firm on the instructions to resolve the case, which is the best place to be.
Now, resolution can be difficult if the opposing side is in a different phase of the process or has emotional incentives that vary from the stimuli moving your own client. But managing that dynamic is both very difficult and beyond the scope of what I intended to write about here. The point here is that managing one’s own clients in a “bad news phase” requires an understanding of this psychological cycle, which is simply a part of human nature.
A lawsuit is ideally about economics, but more often it is hate and fear that powers disputes rather than money. That’s a fact of life. And given that it is these sorts of intense emotions that are at the root of so much litigation, rather than economic imperatives, it should not be surprising that when it becomes clear that a lawsuit is going to lose also generates intense emotions. What is interesting about this phenomenon to me is that it is so very similar to the emotions one feels when mourning the death of a loved family member or friend; only here, it is the loss of hate and revenge that creates the same cycle. I suspect this is why so many artists have developed the theme in their works that love and hate are flip sides of the same coin.