Since I work in litigation, I’m fairly frequently at the receiving end of what can charitably be described as a “gung ho” attitude. A client feels aggrieved, they get annoyed, and they want to sue somebody.
Sometimes that might be the appropriate option. But frequently it isn’t. And so I have the fairly ordinary job of trying to explain to the client why their idea is a bad one. Luckily I’m not alone in this, and my colleagues in all walks of legal practice are often required to do the same thing. If you haven’t had to tell a client they are on the wrong path yet, then you will soon enough.
And it can be a tough job. For starters, it’s not always your job to tell the client they are wrong, so you’ve got to watch it a bit here. You are a lawyer, and that’s where your expertise is. Sure you might have a bunch of experience over time, but try to avoid telling your grandma how to suck eggs. At best they’ll ignore you, at worst you’ll offend them.
Let’s take a look at how to go about it.
It’s Probably Not Rational
The first thing you absolutely must appreciate and take into account is that if the client wants to charge ahead with something monumentally stupid, then it’s probably not their rational brain at work.
More likely, it’s the client’s emotions that are playing into the decision.
That’s not necessarily a bad thing – emotions play into decisions all the time. Ever bought something you didn’t need to “look cool”? What about clothes – do you buy brands, or no-brand clothes? Are your shoes the cheapest reasonable shoes available, or do you aim for a certain amount of elegance or prestige?
So let’s not be critical of clients who want to make decisions based on an emotional response – we all do it.
As a result, if you seek to immediately convince the client not to go down a path on the basis of logic, then you’re unlikely to be successful. Instead, you need to understand and articulate the emotional response back to them, so that they can hear it themselves. “You’re upset about how they treated you” or “You fell in love with that house, didn’t you”.
It doesn’t have to turn into a hugging fireside sing-along, but acknowledging and articulating the emotional response is an important step.
Don’t Start with your Opinion
The ideas we are most likely to accept are those we came up with ourselves.
So, to the extent you can at first, the better way to have a client change their mind is by letting them change their mind, rather than us changing it for them.
Sometimes this will happen by acknowledge their emotional response (above).
Other times, a little more silence will allow them to work through their idea. Never underestimate the power of saying nothing.
The idea is to provide comments, views or information that will gently prompt the client in the direction you think is the recommended course.
Don’t argue at this point – just offer tidbits of information designed to get the client to work through the issues themselves. Ask questions designed to bring up issues you think need to be considered before a final decision is made.
So in a sense you’re getting your view across – but you’re doing it in a way that really lets the client grapple with the issues themselves.
Don’t Hedge or Sugar Coat
If all else fails, then you need to put it out there on the table. “John – this course is going to cost you lots of money, you could well lose, and the other party likely doesn’t have any money anyway – there is nothing to gain by going down this path”. “Mary – the house is riddled with asbestos that’s going to cost more than the purchase price to remove”.
One thing many junior lawyers have a tendency to do is to shy away from giving the bad news. As a result, the news doesn’t really get delivered, and the client doesn’t get the advice they need.
Our role, as trusted advisors, is sometimes to give advice that we know the client won’t want to hear. We don’t have to be mean spirited about it, but we do need to do it.