Good Lawyers Tell the Bad News

April 25, 2022

Authors: Courtney Koch and Ky Koch

If your doctor was fairly certain that you had a serious disease, would you want him her to tell you that it is probably just a common cold? Or would you want to know the diagnosis to be able to react to it and properly plan for the treatment of it?

Similarly, would you want your lawyer to tell you that you had a good case or a good position when, in fact, you did not? Proper planning, strategies, and achieving reasonable results would not be possible with false expectations.

Expect and want your lawyer to give you the truth. Your best interest demands it.

It is critical that, from the very outset of the attorney-client relationship, the lawyer is honest with the client and the client is honest with the lawyer. The ability to plan, develop a strategy, and work toward a reasonable resolution is dependent upon truthful interaction.

It is certainly tempting for lawyers to succumb to pressures from a client and give the client the answer he or she wants to hear. Telling a client that he is almost certainly going to pay alimony is not something that client wants to hear. However, if it is the truth, expectations and planning can be structured around that certainty. Conversely, if the client is led to believe that alimony is not likely, unneeded, and unproductive skirmishes and expectations will result in additional and unwarranted fees on both sides of the case.

You should expect your lawyer to shoot straight. Your lawyer’s education, experience, and battle-tested knowledge has imbued that lawyer with the ability to assess situations and provide advice that will be productive and efficient. It is an important perspective for a client to understand that, when a lawyer advises you to favorably consider a settlement offer, it is against that lawyer’s personal financial interest to do so. Settlement will always result in lesser attorney fees and costs. Trials are horribly expensive, both financially and emotionally.

You want to know the good news, the bad news, and how to best attack the problem. Lawyers are often tempted to tiptoe around issues in order to placate a client. Especially newer lawyers, concerned about losing a client, may sometimes be tempted to “soft-sell” a problem out of fear that the client will discharge the lawyer after hearing the unpleasant news.

In fact, that is a temptation in all of life. However, it is especially important in the attorney-client relationship that an attorney tells a client “like it is” from the very first meeting. It is important that a client understands the strong points and weak points of their case from the very beginning. Otherwise, bad habits, bad decisions, and posturing in the wrong direction will result in less-than-ideal results. Among those bad results include:

  • Dashed expectations
  • Increased attorney fees and costs in an attempt to obtain those heightened expectations.
  • Poor perception by Judges.
  • Strained relationship between lawyer and client as the case progresses.

It is important that the lawyer and client establish, early on, an agreement of transparency. A lawyer needs to be honest with the client. A client needs to let their lawyer know the true facts. The relationship progresses much more productively and efficiently with honest exchanges.

It is very dangerous for a lawyer to provide to their client unrealistic expectations. It is much more efficient to establish realistic expectations from the outset than it is to struggle to undo them and readjust them as the case progresses.

No lawyer can promise you a result. Every case, no matter how strong, has weaknesses and frailties. A retired Judge once told me that the best case he ever saw was a 90 percenter. Truer words have never been spoken.

An important ingredient in “delivering the bad news” lies in a description of the judicial system itself. It is a great system, but it is far from perfect. The vagaries of litigation, the uncertainty of results, the ambiguities of written orders, the variance of judicial perceptions, and the delays inevitably built into every case, all militate toward honest and aggressive settlement efforts. Settlement efforts are always dependent upon the delivery of the good news and the bad news.

It is important to demand from your lawyer an honest assessment at each and every turn in your case. That begins with your first appointment and ends only when the ink is dry on the settlement agreement.

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