No. Not the TV show. This is an article about reporting bad news to your client.
Breaking bad news to a client is one of the hardest responsibilities that a lawyer can discharge. Yet lawyers have a legal and ethical duty to share with clients the totality of their case – including the good news and the bad.
So how do you share bad news ?
This actually begins from the day that you are retained. Clients must understand that litigation is inherently unpredictable. There are no certainties nor guarantees. The only guarantee is a formal judicial process whereby the evidence is heard and the arguments are considered.
Preparing a client for bad news begins very early in the case and continues through each and every turn in the case. Whether it be the exchange of pleadings, examinations for discovery, the exchange of documentary evidence, the opinions provided by experts or pre-trial judges, or simply the lawyer’s commentary to the client through the stages of litigation, clients must be fully informed throughout the process. This includes the discussion of Offers to Settle and cost consequences.
You must educate your client about how the legal system works. Explain that judges are human and they each bring their own personal and professional life experiences to their occupation. In many cases, the decision is made by one singular judge and not by a panel or a jury. Different judges will form different reactions to the same evidence. There is no way to shop for a particular judge.
The legal system is deliberately designed to ensure fairness and eliminate manipulation. This means that lawyers and clients will usually only learn who the assigned judge is on the day of the hearing. It is this realization that may even cause the client to consider alternative dispute resolution pathways such as mediation or private arbitration.
Clients who prefer to know the specific profile of their arbitrator may decide to submit the dispute to arbitration. Should the client choose the litigation route, its inherent risks must be explained. The client needs to understand that unexpected and unfortunate outcomes occur in court proceedings.
At the other end of the litigation timeline, when an unsatisfactory judgement arrives, take a pause to read the judgement and then discuss it with your staff or colleagues. Specifically discuss with your staff how and when to share the judgement with your client.
Support staff usually have a very good understanding of the client’s personality and how best to approach the subject. By carefully reading the judgment, you may be able to identify redeeming qualities in the ruling such as divided success or factual findings that may be helpful. Decide if the client should be notified by email, telephone or in person. Then decide if you should prepare a synopsis for the client of the pros and cons of the judgement.
Since each client is different, his or her reaction will depend on the manner and timing of the communication. Once the method and timing of the disclosure is determined, make sure that you provide the client with the outcome, in a clear and understandable manner. Don’t overstate or understate its impact. Don’t sugarcoat it or catastrophize. Unless there is an immediate need for a stay motion to prevent harm, the time for discussing next steps such as an appeal should not be during this initial disclosure.
Law schools do not teach lawyers how to break bad news. Doing so is an art, not a science. Clients are profoundly impacted by the outcome of their court cases. They will carry their memories of their litigation experience for years to come. It will be shared with their friends and family. The lawyer who carries the responsibility of breaking bad news must approach it with compassion, candour and forthrightness. The lawyer’s stock-in-trade is his or her reputation. Ensure that your reputation is one that stands for honesty and integrity.
Editorial Note: Originally published in 2016, this piece remains powerfully relevant for today’s legal professionals. Communicating with clarity and compassion—especially when outcomes fall short of expectations—is one of the most difficult and defining aspects of legal practice. This article explores how lawyers can navigate those moments with professionalism, transparency, and integrity.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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