Why bad news is hard to give, and why lawyers cannot avoid it

• Clients are entitled to know. Professional rules in most places require lawyers to keep clients informed of significant developments, including adverse ones, promptly and in terms they can understand. A client who learns late that a case is going badly has lost the chance to decide what to do.
• Delay changes the options. A deadline passes, a settlement offer lapses, the client commits money or makes plans that they would not have made. Prompt news keeps choices open.
• Others have a right to hear too: a colleague whose work is falling short, a junior whose job is at risk, a supervisor who needs to know that something has gone wrong, a family waiting for an outcome.
• Honesty is part of the lawyer’s character. Deceiving a client, and misleading them by silence or by false cheer, is a breach of the most basic duty. Even where no rule applies, trust is lost when people find that they were not told.
• The duty is shared across the organisation. A firm that makes it normal to hide problems will have many more of them. See Module 6.

None of these feelings is unusual. The skill is to notice them, accept them and do the task anyway, in the best way you can.

• Outcomes: a lost case, a failed negotiation, a refused application, a sentence, a ruling against the client.
• Advice: ‘You do not have a claim.’ ‘You cannot do what you want.’ ‘Your will is invalid.’ ‘This plan is unlawful.’
• Money: a bigger bill, a smaller recovery than hoped, costs orders, a bill that cannot be reduced.
• Time: a delay, a hearing that has been moved, a registry backlog.
• Personal events with a legal side: a death and what follows in an estate, a breakdown of a marriage, a child’s removal, a dismissal, a diagnosis relevant to a claim.
• People and work: a colleague’s work is not of the standard required, a junior will not be kept on, a team is being restructured, a promotion has gone to someone else.
• Your own failure: a missed deadline, an error in a document, advice that turned out to be wrong, conflict that means you must stop acting.
• Bad news for third parties: an opponent told that their offer is refused, a witness told that their evidence will be challenged, a journalist told that nothing can be said.

These differ in weight and in who is affected, but they share a structure, and the same method serves for most of them. Where the situation changes the approach (a bereaved family, a junior being let go, your own mistake), the later modules say how.

1. Say it, and say it soon. Delay makes it worse, and the news should come from you.
2. Say it plainly. The news goes first, in short words, without fog. Then the explanation.
3. Say it humanely. Notice the person. Pause, acknowledge what the news means to them and let them react.
4. Say what next. Options, a recommendation, what you will do and when you will be in touch.

• The avoider puts it off, minimises and hopes. Remedy: set a time limit and use the principle ‘soon’.
• The softener wraps the news in so much cushioning that it is missed. Remedy: put the news first, in a short sentence.
• The bludgeoner blurts it out without feeling, in the name of honesty. Remedy: add the pause and acknowledge the person.
• The explainer goes through the whole history before reaching the point. Remedy: headline first, history later.
• The rescuer takes responsibility for the listener’s feelings, promises more than can be delivered and cannot bear their distress. Remedy: stay with the feeling without trying to fix it, and promise only what you can do.
• The deflector blames others, the court, the other side or the client. Remedy: describe what happened and what can be done, and leave blame alone.

Most people have one or two of these. Knowing yours tells you what to practise. In the last module you will draw up a plan.