One of the challenges of law practice today is the occasional need to deliver bad news to clients. While lawyers would like to report that the jury found for their client, or the judge ruled in the client’s favor, that does not always occur, despite best efforts by the lawyer on the client’s behalf. In the case of criminal defendants, it may involve news that they are going to prison – and worse.
We can learn how to deliver bad news better by learning from medicine and positive psychology—the evidence-based study of how people can succeed and not just respond to clinical levels of emotional and cognitive difficulty—and transposing that learning into a legal or other situation where the lawyer is the bearer of bad news whether at the office or even at home.
Specifically, the article reports how a “bad news protocol” developed for terminally ill patients by Dr. Chris Feudtner of Philadelphia, and adapted for law students and lawyers by me (R. Lisle Baker) with his consent, has been used by a public defender in Oregon, Jennifer List. Dr. Feudtner’s work is described below, but Ms. List describes her practice this way:
My job as a public defender is to protect and utilize a client’s fundamental, constitutional rights to the client’s advantage. In particular, I deal with post-conviction, probation violation cases. Most of my clients are facing probation revocation. They are accused of failing to meet the requirements of their sentence, such as treatment or reporting to a probation officer, and now confront the possibility of further incarceration. That often is bad news.
I wrote about Dr. Feutner’s protocol as a way for lawyers to deliver bad news well as part of a law review article, Designing a Positive Psychology Course for Lawyers. Ms. List read my article and wrote to me that “I am especially intrigued by your information on sharing bad news with people. I am constantly having to tell people they are going to prison and your information was so helpful…” She then brought this learning into her practice, and this article is the result.
To report her experience, our format is for me to provide the conceptual framework and follow it with her reported experience in quote blocks, as above. Our hope is that this article might provide some useful food for thought for practitioners facing similar bad news situations elsewhere.
1. Delivering bad news well: a medical protocol.
As a pediatric palliative care physician and researcher, Dr. Feudtner has the difficult task of telling parents their child will not survive. He developed a protocol for communicating the bad news which he authorized me to adapt to help law students learn how best to deliver bad news to their clients. I have reframed it as delivering bad news well because that phrase cues a number of meanings useful for law students and lawyers to recall as explored below. But his protocol is also useful in everyday life. To give readers a brief introduction, here is an example that Dr. Feudtner presented to my Master of Applied Positive Psychology (MAPP) class at the University of Pennsylvania in 2016. The example involves a fictional conversation with his wife, where we heard his side of the conversation (with elements of the protocol in italics):
- Recap: “Dear, remember we planned to go out to dinner tonight”?
- Warning shot: “I called the restaurant and I have news I wish I did not have to tell you.”
- Bad news: “They don’t have reservations for tonight.”
- Acknowledgment: “I know you are disappointed.”
- Choice: “Are there are other places we can go? Want to think about it”?
- Plan: “How about we try…?”
Dr. Feudtner’s protocol (and how Ms. List has adapted it) contains much more than these six elements. Before we explore those, however, notice two underlying aspects: a) the bad news is wrapped inside other elements designed to make it easier to absorb and respond to, and b) the primary focus is on the person receiving the bad news, not the person delivering it.
2. Elaborating Dr. Feudtner’s protocol.
Before introducing Ms. List’s adaptation, it is important to understand more about the origin and context of Dr. Feudtner’s protocol. Dr. Feudtner said that he evolved his protocol in response to the challenge of undertaking one of the hardest tasks imaginable: telling parents their child is going to die from a terminal disease. His method is important because it involves being aware of the other person and his or her difficulties, rather than trying to ease our own pain in giving bad news. (In the case of bad news, we often get caught in anxiety about how we are doing and lose sight of the other person and how they need to be treated.) Dr. Feudtner’s protocol also involves giving the bad news recipients as much control as possible over timing and location so that the recipients do not feel like they had no choice or role to play. Most important, Dr. Feudtner emphasized that this protocol comes out of a place of compassion, and out of caring for the person involved. We have to be fully present and real to the other person, and not just hide behind our professional persona.
When I began to teach a new course at Suffolk Law School called Positive Psychology for Lawyers, I asked Dr. Feudtner if I might adapt his protocol for law students and lawyers, and he agreed. One of the assignments for my students is to practice delivering bad news well to someone—though they are advised to try it out in a less serious situation than they will in law practice, like the restaurant reservation conversation Dr. Feudtner used with our MAPP class. This is what I wrote about in my article. Ms. List read that assignment in my article, and what follows is a slightly edited version of what she read.
Dr. Feudtner’s protocol can be summarized into the following three steps, with the understanding that each situation may require some adaptation to fit it.
1. Prepare to deliver the bad news: Visualize how you will do this delivery; remember that your anxiety is not what is important, though you have to recognize it. The important thing is to respect the person receiving the bad news, and the fact that person may have limited mental bandwidth to absorb all that you are telling him or her.
- Make a plan: Think out these steps in advance. You would not go to trial unprepared; why do so here?
- Get the setting and people right: Who should be there with you and the person receiving the bad news, or who would that person may or may not want around? Where will it take place? Sit close to, and at the same level as the person if you can, rather than behind a desk, unless you have legitimate security concerns. Make sure you look the person in the eye, unless it is uncomfortable for that person for some reason. It is about the client, not about you.
2. Deliver the bad news:
- Briefly recap the situation: Don’t recapitulate his or her whole life; a recap can be 30 seconds to a minute, maximum, of how the person came to you and what has happened since. (“You remember when you first consulted me about ____, and then we did…”).
- Provide a warning shot: This step is important because it gives the person a chance to become prepared (“I think we should talk candidly about your case. I wish the news were different. Is this a good time to talk? Do want someone else with us? Where would be easiest for you?”).
- State the bad news simply: Be forthright and straightforward, something we hope you said you would do at the outset of your engagement, so it is not a surprise when you actually do it. Do not just say things to fill the airtime simply because it is painful news for you to deliver.
- Allow silence: Often we get anxious and want to fill the silence. Don’t. The person needs time to digest what you have said without the distraction of your talking.
- Acknowledge the person’s emotion, if it is obvious: Be prepared to accept what they say and not argue with it, though argument is what we often do as lawyers. Be sensitive and take care not to impose your assumption about how you would have reacted on the other person. Even if it is not obvious, you can empathize with their situation (“I can appreciate how you may feel upset,” or “I wish it were otherwise.”)
- Answer questions the person may have: Again, be straightforward and to the point.
3. Follow up:
- Formulate a next-step plan: Note that it may be important to separate the bad news from what is to be done to follow up. The person will often need time to absorb what you have said, and the next steps will get lost, misunderstood, or otherwise not be optimal. We are often anxious to get past the bad news so that we may discuss something we can do about it. Let the bad news sink in. When you do have a proposed plan, simply state what will happen next. Note that the plan may involve decisions by the other person. Allow time and space, if necessary, for that conversation to go on. Also, respect the fact that the person may have difficulty letting go of the good news that person may have hoped to hear. Nevertheless, the person may have, upon inquiry, a back-up goal that you may be able to meet, such as mitigating the impacts of what might happen next or providing an alternative course of action.
- If you must leave to see someone else, do so, but do not abandon the person: Have someone who can stay with the person if need be. Otherwise, this conversation looks like a hit-and-run accident.
- Debrief with someone else: Speak to someone who can offer you a way to deal with your own anxiety in being the bearer of bad news. This person may also be able to help you see if you left something out that is important.
With this background in mind, how did this protocol work for someone in active law practice like Ms. List?
3. The varied aspects of delivering bad news well.
Working with Ms. List, it became apparent from her experience that delivering bad news well involves several aspects of wellness that we wanted to explore in this article. First, if the lawyer is well, the work will go better for both the lawyer and the client. Second, even assuming the lawyer is in good shape, the lawyer still needs to focus on the well-being of the client, whose life may otherwise soon be changed for the worse. Third, to help the client successfully, the lawyer needs to prepare a process of delivery so that the bad news is delivered well, rather than badly. Fourth, if these first three aspects of well-being and well-doing are present, Ms. List found that it can sometimes improve the outcome, including how well the attorney advocates to the court. Finally, if a virtuous cycle can be created, she found that the experience can become a wellspring for her, as well as potentially enhancing the well-being of others besides the attorney and her client.
4. Delivering bad news well: the lawyer.
One recent study indicates that at any given time, about one-fifth of the members of the practicing bar experience problems ranging from depression and anxiety to alcoholism and substance abuse, higher than physicians or other highly educated professionals. It should be obvious that in such conditions, it is difficult for such lawyers to function effectively on behalf of their clients. Other articles in this issue of Law Practice Today focus on ways to respond to this situation in a variety of ways. The point of this article is that the first “well” in delivering bad news well needs to be the well-being of the lawyer. That does not mean just the absence of mental misery, but a positive frame of mind which helps the work be better done for the client. Ms. List reported that learning about positive psychology and Dr. Feudtner’s protocol aided her own well-being in a difficult role as a public defender.
Working with people whose lives are often shaped by poverty, homelessness, abuse, addiction, mental illness and a lack of any support system can be exhausting if you are not diligent about self-care. The system is not designed to support attorney wellness. In particular, public defenders are often paid less than private counsel, carry heavy caseloads, and are not valued by society at large or even sometimes within the criminal justice system. In this context, a positive mindset is crucial to being able to thrive as a public defender, both personally and professionally.
In my own case, the combination of poor coping skills, a high caseload, and a mindset fixed on “winning” contributed to both depression and poor physical health. The minute one person’s case was resolved, five more came in, and with them, more problems than I could solve. In 2017, I was ready to quit law. Then I learned about a course of study on positive psychology and signed up. In going through that program, my life changed from the inside out.
There I read work by Dr. Sonja Lubyomirsky that about 50% of life satisfaction is due to genetics, about 10% due to external events and the situation, and about 40% is within my control (what I think, do, and feel). According to her research, getting a new job or winning the lottery might temporarily make me happy, but over time these events would not make a significant difference in my overall wellbeing. This meant that I could be happy right now with my life, with all its imperfections and with the challenging job of being a public defender.
That being said, I am not endorsing the proposal that public defenders should accept the status quo of low pay and too many cases and place the responsibility of systemic issues on themselves. What I am proposing is that attorneys working with clients can use this protocol to improve their quality of life at the office and inspire greater client satisfaction and outcomes.
In that vein, I wanted to share the science of positive psychology and well-being in my work and with other lawyers. I knew if it could help me feel better, it could help other lawyers. Then I read Professor Lisle Baker’s law review article on Designing a Positive Psychology Course for Lawyers. It explained why and how this learning related to legal education and law practice. When I got to his adaptation of how to deliver bad news in a medical setting to that of a legal setting, I knew this adaptation could potentially make a huge difference in not only my clients’ lives but also in my ability to be a better lawyer and enjoy my job more. It turned out I was right.
4. Delivering bad news well: adapting a medical protocol from the patient to the client.
What Ms. List has done is to adapt Dr. Feudtner’s protocol to her criminal defense work. It involves using his protocol almost like a checklist, combined with more listening and less talking, with her own well-being as a precondition. After she reached out to me in September, Ms. List and I talked about her use of the protocol. I remembered that Dr. Feudtner had shown our MAPP class a slide which put his protocol in visual terms. Dr. Feudtner subsequently shared his slide with me, and I sent it to Ms. List. Here it is.
In addition to what Professor Baker wrote in his article reported above, I found this slide very helpful because it put the protocol on one page. I began using it like a checklist, keeping a copy by my phone when I called clients to remind me of some of the basic ideas. I have found that I have not followed either version—Professor Baker’s or Dr. Feudtner’s—completely, because the situations are different with my clients accessible often only by phone and without extensive preliminary or follow-up conversations which might be the case with a patient or with clients in other areas of law. What follows, however, are some lessons I have learned from adapting the protocol to my own work, recognizing that other attorneys may do something different, depending on their situation.
While it is important that the lawyer is well-prepared in general, in the specific instance the lawyer may be very anxious or dismayed to be the bearer of bad news. It is important to be prepared for this aspect of law practice just as the lawyer prepared for an opening argument, or witness testimony, or the conduct of a trial in general. In short, anxiety is normal, so prepare for it in advance. That will allow a focus to be placed on the person that matters: the client. While it may be infeasible for the lawyer to help the client’s general well-being, it is important not to diminish it in the delivery of the bad news.
Just because I am delivering bad news better does not mean a client will grow to like the news or accept it. All I can do is to try and deliver it in a better way. Because all day I give bad news. Rarely am I telling a client “good news.” Even if clients may be largely responsible for the situation they are in, they still want a lawyer to care about them and their cases. Creating an intention before contacting a client makes a huge difference. Knowing the file, applicable law and as much as possible about the client before we speak inspires confidence on the part of the client and sets the right tone to begin the attorney-client relationship.
Listen with care and caring.
The protocol provides a framework to listen and learn rather than to dominate a client with my voice. A difference between the medical model and using the protocol in a legal setting is that in listening better, the client and I can collaborate on different ways to favorably resolve the case. It becomes less about me and what I need to tell the client and more about the client’s feelings and ideas about what they want. One of the most difficult habits for me to break is that of interrupting my clients to argue with them about their ideas regarding their case. Additionally, listening to reflect back to them what I hear them say is very effective in both calming the client and learning about how best to proceed with the case.
For example, at one point during this research I walked into an interview with another attorney and a shared client. The client would say something, and the attorney would begin to talk over the client and argue. I have engaged in this routine many times myself. I sat down ready to try the protocol on the client. I listened and then repeated back to the client what he was asking us to do. I then stated I would make his request and get back to him. The client was shocked and thrilled. The interview then ended on a positive note. I noted it took far less time to listen to and consider the client’s request rather than to argue about it. The other even side ended up agreeing to some of client’s requests. We were wrong, and the client was right.
Meet in person if possible.
Implicit in Dr. Feudtner’s protocol is a conversation in person with the patient, or as often in his case, the parent or parents of a sick child. Lawyers like Ms. List, with many clients to see, do not always have that opportunity. Nonetheless, she has found it important to talk with her clients in person when she can.
Although many of my client conversations happen on the phone, I find it pivotal to meet my clients in person before we go to court. Talking face-to-face builds trust and care in both directions. To illustrate, I visited a client with whom I was having a rocky relationship and who had wanted to fire me. During our in-person conversation, the client briefly shared with me his family history. At this point in our discussion, the client began to quietly tear up. He grew up in an incredibly abusive home, then foster care and later, in jails and prisons. For all intents and purposes, I was all he had. He then went from my most challenging client to someone I felt even more bound to protect. At the end of the conversation, we did a fist bump through the glass visiting window.
Pay attention to how you begin and end.
Although not emphasized in the protocol, I noticed that warm beginnings and endings in a client conversation made for better attorney-client relationships. I began to make it a point to ask if a client wanted to talk first or wanted me to talk first. I also experimented with ending conversations by saying “please call me if you have more questions or concerns.”
For instance, in one recent case, the judge took my client into custody for a greater amount of time than we anticipated. After adjudication, the client called my office asking for help in tying up a few loose ends in the outside world. Even though my legal work on his case was done, I and my assistant helped him with his requests — which probably took about 30 minutes altogether. Even though he was now in custody, he thanked me profusely and said he appreciated my legal help.
5. Delivering bad news well—the outcome.
When Ms. List contacted me, I suggested that she begin logging her client interactions in a spreadsheet to allow her to reflect on her experience more systematically, to determine if Dr. Feudtner’s protocol should be modified or was having impacts beyond improving both her feeling about representing her clients and their feeling about her representing them. Unlike Dr. Feudtner’s medical model, where the bad news may be the precondition to discussing either palliative care or a course of treatment with a patient, Ms. List found that using the protocol began to improve the outcomes for her clients.
Surprisingly, when I reviewed my research—over 30 or so cases—I began to see a pattern of better outcomes. I believe this bad news protocol allows for more creativity and collaboration in my work. I was connecting more with my clients, which enabled me to better share their stories. In turn, I could more persuasively advocate to the court our position. Even if I did not believe our plan would work due to the facts and law before me, I was surprised to see the outcomes often included less incarceration and more opportunities to engage in supportive services. What the clients do with those opportunities is up to them, but my job is to help them get these chances. In tandem with better outcomes, I observed that for my clients, the perceived fairness of the legal process itself was just as important, if not more so, than the outcome. For example, in one case a client opened our conversation by stating that no one was going to listen to her and no one ever did. She denied every allegation. I listened without interruption or judgment. Then, when it came down to negotiating her case, the client trusted me. Although she did not get the outcome she hoped for, I believe she could deal with the bad news much better because I had taken time to listen to her from the beginning.
6. Delivering bad news well: the judge.
Ms. List is often counsel of last resort for her clients because they cannot pay for private counsel, so the state does so instead. But more than poverty, her clients often bring with them their own bad news. Defenders sometimes have to defend the seemingly indefensible, but if justice is tempered with mercy, delivering the client’s own bad news well is a form of high advocacy in the pursuit of “equal justice under law.” Having a lawyer who is well enough to hear the life tragedies that are the bad news stories of many indigent clients, and then tell those stories in ways that helps them heal, is an important part of the administration of justice. Here is the story of one such client from Ms. List.
In one case, a client wanted another chance at treatment, although treatment had just kicked him out. Considering all the circumstances, I thought the guy was crazy to think the judge would give him another chance. My “lawyer instinct” kicked in and I began to argue with my client. Luckily, because I was using this protocol, I stopped myself and began to listen. I then discovered the nuanced positives to his story about being terminated from treatment. In court, we used my client’s story to advocate for another chance. I was still doubtful we would prevail. However, the judge ruled for my client. It was nice to be proven wrong again.
7. Delivering bad news well: third parties
Those with military combat experience understand too well the euphemism of “collateral damage,” where innocent civilians are casualties of war as well. Lawyers who are miserable can be miserable to be around, with adverse effects on those around them. Ms. List’s experience had unexpected positive collateral impacts.
I believe using the protocol can have a ripple effect to those in my client’s life. One example that comes to mind are the families of those I represent. For instance, when one of my clients received less jail time than expected, his family was very appreciative. Although I was late to the next hearing, I knew it was important to talk with them. They introduced themselves, from the son-in-law to the grandchild. If the families are part of my client’s circle of concern, then they are now a greater part of my circle of concern. I was delighted and surprised to discover that in one week alone, my assistant and I received three emails from clients and family members thanking us for our help. I owe these types of emails to the protocol. I do not recall getting this many thank yous at once. The protocol is inspiring better service for my clients and their families.
8. Delivering bad news well: making it a wellspring.
Finally, scholars of positive psychology have long been aware of what is called the hedonic treadmill—that what begins as a novelty and a source of great joy can pale with time and exposure, like a third serving of ice cream. What offers an alternative is sometimes referred to as “eudaimonic” satisfaction—finding meaning in doing good in addition to being well. In my Positive Psychology for Lawyers course at Suffolk University Law School, I ask my students to keep a “Positive Activity Log” like recording time spent on a client matter, as I did when I was in law practice. The point is simply to have something to return to from time to time to savor and possibly re-energize us. Ms. List found that her own version of this log—initially for reflection and possibly research—had similar collateral effects. The point is that this idea brings delivering bad news well full circle—to the well-being of the lawyer—both as a well-spring to which to return for inspiration as well as a well-spring for doing better as a skilled professional.
In creating the log, I made several columns. These included the following: client name, case facts, client comments, whether I stuck to the protocol or not and notes on outcomes. If I strayed from the protocol, I noted what I did differently and why. I noted sometimes that I used the protocol over and over with the same client—often repeating information or with nuanced, updated versions of the latest happenings in the client’s case. It was not until I reviewed my research log that I noticed my clients were obtaining good outcomes, even in situations where I predicted an unfavorable outcome. Also, in rereading my entries, it felt great to be reminded of positive client interactions and to see that I could learn from the more challenging ones.
Although as public defenders we are trained to fight and protect, the heart of our work happens with our clients outside the courtroom. Sometimes I use the protocol of trying to deliver bad news well and things do not go well. I still get angry and frustrated, especially if I am worn out. That’s where self-care and a meaningful life outside the office are crucial to this process. Using this protocol with my clients has been one of the most enjoyable and rewarding tools to implement in my law practice. I believe it has helped me find an effective and compassionate way to talk with clients and has improved their lives and mine.
In the context of law practice like Ms. List conducts, delivering bad news well involves multiple dimensions of wellness: the attorney, the client, the process, the outcome, the court, and third parties. Keeping all of them in mind—and preparing for them in advance—can help provide better justice for the client and for those collaterally involved. Better justice may not happen every time, but Ms. List’s experience with adapting the bad news protocol indicates that it can happen often enough to make a positive difference for the attorney, the client, and the administration of justice. Ms. List and I welcome hearing from others if they have similar outcomes or if they shape this learning in different ways but to similar ends.
About the Authors
Lisle Baker (email@example.com) is a law professor at Suffolk University Law School in Boston, MA. Jennifer List (firstname.lastname@example.org) is a criminal defense attorney with Multnomah Defenders, Inc., the public defender in Portland, OR.