May 22, 2013
Last week’s post discussed how to properly set your clients’ expectations to ensure that they are as satisfied with your work as possible.
Although setting proper expectations serves many purposes, its use in the context of ensuring client satisfaction is to increase the likelihood that your clients will refer you to their family and friends.
As mentioned last week, however, there is another part of the equation of working toward the best client experience possible: damage control.
What do I mean by “damage control?”
The simplest way of putting it is “delivering bad news.” Effective damage control is anything but simple, though.
First, let’s start by discussing when and why damage control is even necessary.
As stated last week (and as most lawyers are likely well aware), how things will turn out in court is very difficult to predict. Regardless of how much legal and factual support you have, how strong you believe your case to be, and how well you’ve argued your point, you could still be handed a crushing defeat.
This is a major reason why part of effectively setting client expectations is to never give your predictions on the case’s outcome to your client (as discussed last week). But it is also important in explaining why effective “damage control” skills are necessary: You will almost certainly have to give a client bad news at some point in your practice (and likely on a somewhat regular basis).
And how you deliver the bad news can make all of the difference in the world over how your client views your skills as an attorney.
If you want to do it right, there are several important principles to keep in mind.
First, you must fight the urge to believe that things could have turned out differently if you had only done X better or Y differently. Hindsight is always 20/20 and there’s no telling what could have truly been done differently to produce a different result.
More importantly, unless you have the ability to travel backwards in time, focusing on what you could have done differently won’t change the result. You can only treat it as a learning experience going forward.
However, just because you may be able to recognize things that you could have done differently after you get the result doesn’t mean that you – or any other lawyer for that matter – may have been able to recognize those same points before. Again, hindsight is 20/20.
What does this all have to do with “damage control?” Simply this: you can’t blame yourself for a bad result in court. You can only really blame yourself for the most obvious of mistakes, and even then, in most cases, those mistakes aren’t the reason that the result came out how it did.
And if you shouldn’t blame yourself privately, you most certainly shouldn’t take the blame in front of your client. He or she will already be looking for someone to blame, and the last thing you should do (if you ever hope to get a referral from this client) is to paint a target on your back.
So what should you say instead?
A lot of that has already been covered this week and last.
If you’ve followed my advice from last week, you’ll have told your client beforehand that you made the best case possible and that all you can do now is to wait and see. Thus, after you get the result – if it’s bad news – it should be a simple matter for you to repeat what you’ve already said: that you’ve done the best job you could, and that there wasn’t anything that could have been done differently.
If clients insist on finding someone to blame (which they often do), the decision maker – whether it’s the judge or jury – is often an accurate target. Though you should steer clear of insults, something you can say to your client (which is often very true) is that “the judge/jury already had his/her/their mind made up.”
Sometimes the judge has a policy objective behind his or her decisions, and sometimes the jury didn’t fully understand the facts or the law in the case. In any of these circumstances, there is very little that you could have done beforehand to change the result.
But just as you shouldn’t blame yourself in front of the client, so should you not blame the client him- or herself – even if he or she is to blame.
More likely than not, the client is aware of any mistakes on his or her part, and doesn’t need you pointing them out – and souring the attorney-client relationship.
In addition, unless the mistake was the result of the client’s ignoring your advice, you very likely could have done something to prevent the client mistake in advance. The last thing you would want to do in this situation is to have the blame turned around on you.
If you really need to address the client’s mistake (if you aren’t done representing the client), it’s best to do it in the form of advice for an upcoming legal matter.
Finally, if, as discussed last week, you provided your client with every conceivable outcome, it’s unlikely that the result you got is as bad as it could have been (if so, I’m sorry and good luck). It’s always helpful to point out to your client that, while this result was bad, it could have been a lot worse.
Your exact approach in giving clients bad news is up to you, but the mindset that you should be trying to get yourself into – which all of my advice follows – is that you and your client are in this together. Don’t drive a wedge between the two of you with blame. If blame really needs to be placed, do it outside of the attorney-client relationship.
No matter how disappointed or upset he or she is, your client should come away feeling as though you gave it your all, and that you’re sticking by his or her side.