Tell it like it is

Law school doesn’t teach us how to tell folks they don’t have a case or that a judge’s recent decision ended things. Most of us learn this the hard way. We see it or do it poorly and then modify our approach over time. Oncologists tend to do this well, and we can take a page from their training. Before delivering difficult news, consider the setting. “We’ve completed our investigation. We need to discuss important findings with you. We prefer to do that face to face, although video can work.” This allows the recipient to mentally prepare for significant news — and allows the one delivering it to see how the person is doing.

Direct is kind

People sometimes fear being direct, instead offering platitudes or unrealistic hope. That’s not kind. The best approach? A simple greeting, then deliver the information directly. “There are limitations on cases against the government. One is called discretionary immunity. Unfortunately, after investigating we see that as a complete bar to this claim, meaning we do not think your case can be won.” The news comes first, followed by space for emotional reaction. Then any further explanations and question answering. Clarity honors the recipient’s dignity and emotional intelligence. Dancing around difficult information or drowning it in pleasantries creates confusion and extends suffering.

Many professionals were taught to soften difficult messages: start with positives, sandwich criticism between compliments, or begin with extensive context. These approaches feel kinder to the deliverer but often create anxiety for the recipient, who just wants the answer.

Processing time is essential

The silence following difficult news is powerful and necessary. After delivering bad news, pause and allow space to process. This might feel uncomfortable, but filling the void deprives the necessary emotional processing time for the recipient. This pause serves another critical purpose: it gives the recipient dignity. They can compose themselves, formulate questions, or express emotions without being rushed into the conversation’s next phase. That next phase can include anger or denial. Rather than becoming defensive or attempting to defuse legitimate emotions, one should acknowledge the responses.

Once the core message is delivered and processed, then — and only then — comes the explanation. For a declined case, this might include specific legal hurdles, causation issues, or evidentiary problems. The explanation should be thorough but accessible. This isn’t the time to dazzle with Latin or five-dollar words. Good lawyers explain complex issues in simple terms. The client deserves to understand precisely why their case lacks merit, explained in terms they can comprehend and relay to others who ask.

Oncologists tend to deliver difficult news well. We can take a page from their training.

The path forward

After delivering the information and explanation, the lawyer should acknowledge that it is a lot to take and can be difficult to process it all. One should make clear that the conversation isn’t the only opportunity for questions. “This is a lot of information to absorb all at once. If you or others you speak with have additional questions that arise later, we’re happy to have a further conversation.”

Law, as we often hear, is a practice, not perfection. When declining a case, there’s wisdom in acknowledging that other lawyers analyzing the facts might see a different path. When the events are particularly catastrophic and complex, it can be useful to recommend getting a second opinion. This can include giving the names of those with experience in that particular area. Offer to provide the file and answer any questions to others looking at the case.

Don’t give false hope to those who have already tread many paths. If one is the second, third, or umpteenth lawyer, and no-one has been direct enough to say it like it is, have the courage to do the right thing. Most legal malpractice lawyers recommend against telling people they do not have a case as far as one is concerned. The result? People who receive vaguely worded rejection letters telling them the case was declined for business reasons and to consult another lawyer immediately or risk blowing the statute of limitations. Let these individuals off the hook. Be direct. Tell them that if several firms have said no, then it likely means there’s no winnable case. That information is theirs to do with as they will: but the important thing is that they have it in the plainest terms possible.

A version of this article originally appeared in Plaintiff magazine, where Miles has written his monthly Back Story column for almost 15 years. Interested in Plaintiff and its coverage? Read more at plaintiffmagazine.com.