How to Make Conversations About Bad News Less Awkward
Alexandra Svensson | October 22, 2022
Alexandra Svensson is the founder of Svensson Legal LLC, a boutique IP firm that helps brands manage their IP and scale their commercial operations. She's practiced on both sides of the aisle: starting her career at Foley & Lardner, moving to Copenhagen, Denmark to serve as in-house trademark counsel at the pharmaceutical company, Novo Nordisk, then returning to the States with Charles Schwab.
I recently had a conversation with a friend from law school who also started her own legal practice. As I’d been preparing to share some bad news with a client, I asked her how she approached these types of updates. Her response instantly shifted the way I thought about client relationship management.
She laughed and said: “Well, sometimes I feel part-lawyer, part-therapist.”
This perspective might seem obvious for some practitioners- family law practitioners, for example- but not as obvious for those of us who represent corporations. Yet regardless of who we actually represent- individuals or corporations- we ultimately report to people. And people, it turns out, don’t always behave rationally when confronted with bad news, risk, and important decision-making. And those with skin in the game (brandowners, for example) may be even more emotionally invested.
As I continued my preparation, I started researching the topic. Most articles I found online recommended roughly the same three-step approach: first, deliver the bad news as soon as possible. Don’t delay. Second, try to communicate it in person or over the phone. Preferably not by email. And third, accompany the bad news with an action plan going forward. Don’t sugarcoat it.
These recommendations didn’t strike me as particularly enlightening: aren’t they just common-sense guidelines that apply to effective communication generally? Video or phone communication will always prove more effective than email, as you have access to more communication tools like tone of voice and facial expression. Proactive, prompt communication is a prerequisite for…well, anyone doing business really. None of it seemed specific to the delivery of bad news or disappointing outcomes.
Afterwards, I asked Tim Wikstrom, communications coach and founder of Thread Communications, a communications consultancy that provides communications training, executive presence, and presentation skills to professionals, what he thought about it. While he agreed that the conventional guidelines were a good starting point, he had a few other recommendations to add:
First, use positive language.
According to Tim, most people don’t adequately prepare for difficult reporting conversations. In his coaching practice, he’s often approached by people looking for advice on how to go back and smooth over an initial conversation that didn’t go well. “My first question to everyone I talk to about delivering this kind of information is, ‘How did you prepare?’ A majority of the time (conservatively, 80% of the time) the answer is, ‘I didn’t really have a plan,’” Tim says.
Mapping out the conversation ahead of time is crucial for managing the audience’s emotions, retaining their trust and confidence, and instilling a sense of control. To do this, relay the events as neutrally as possible.
“People will often say, ‘Well, I have some bad news…’ or, ‘Unfortunately, ….’” says Tim. “This already sets the tone for negativity and leaves little room for focus on the next steps or recommendations.” Instead, Tim recommends starting with “a succinct recap of what the intended goal/objective was, and the steps taken. Then, you can go into the necessary details that explain how the situation came to be at that time.”
Second, acknowledge emotion- without taking ownership for it.
Well-known psychologists, Daniel Kahneman and Amos Tversky, found that people are more sensitive to losses than corresponding gains, a phenomenon they called “loss aversion.” They estimated people to value losses 2.3 times more than gains, although others have estimated the ratio to be as high as five to one. This means, for example, that someone who won $75 but later lost $50 may become, on the whole, more unhappy, even though they won a net amount of $25!
Loss aversion presents a challenge for lawyers, especially for those of us providing routine advising and counseling aimed at reducing legal risk. When the “return on investment” of our work results in the avoidance of something bad happening- in other words, nothing happening at all- while the cost of our work involves potential risks materializing (foreseen or unforeseen), it’s easy to see how loss aversion can cause clients to feel frustrated, annoyed or angry with negative legal outcomes.
Whether you’re delivering a single piece of bad news or have experienced a number of small setbacks (for example, countless trademark clearance searches resulting in high-risk marks), Tim recommends you focus on delivering the information constructively and avoid apologizing unless you are responsible for the outcome.
“Oftentimes, we get pulled into the emotional side of the conversation and take on the other person’s feelings, which leads us to apologize unnecessarily,” Tim says. “It isn’t easy to deliver this type of information and there is a difference between acknowledging someone’s feelings and taking responsibility for them when we truly do not own them.”
Third, don’t forget to check in with your audience.
After spending years working as in-house counsel, I’m surprised that so many private practitioners still schedule telephone “conference calls,” instead of industry-standard Zoom or virtual face-to-face meetings. Besides offering valuable opportunities to connect deeper with clients over video, virtual meetings are a more effective forum for delivering bad news.
Tim recommends paying close attention to your client’s body language and facial expressions when delivering bad news. Both are key indicators of how the person is receiving your message.
“All too often people are more focused on getting the information off their plate and moving forward that they forget to pause and ask the person they are delivering the information to if they have any questions,” says Tim. “Checking in lets the person know you are aware of how they are showing up and not just sharing the bad news.”
Checking in with your client makes the dialogue more conversational, making them feel empowered to act instead of the passive recipient of bad news. Or put another way: it makes you less likely to be perceived as the “messenger,” a role that research shows invites resentment even within professional realms, and more likely to be perceived as the trusted legal partner that you are.
Practice makes perfect
With these recommendations in mind, I reflected back on how the conversation went with my client. The bad news I needed to deliver involved extensions of time that were filed by a fairly well-known (but far from “famous”) energy company to oppose my client’s in-use trademark application for their logo. The energy company operated in a vastly different industry than my client and wasn’t flagged as a material risk during the initial preliminary clearance search. The news caught us both by surprise.
The telephone conversation began as neutrally as possible. I began, “Hi, there’s an update with your logo application I want to share with you. So-and-so, an energy company, has filed an extension of time to oppose the application.” Followed by a long pause.
“Who?” he asked.
I dove into my research, describing the company’s litigation history and potential implications for my client’s logo. He started to become frustrated, saying “I’m beginning to question the ROI here of trademark protection. We’ve been using our logo for years without any problems. But now that we’ve filed a trademark application for it, we have an energy company after us and you’re telling me I might not be able to use it anymore?”
Instinctively, I wanted to apologize. Instead, I acknowledged his frustration without apologizing for it. I told him: “I know how frustrating this must be for you right now. And I can see how unfair it seems. But let’s remember that the ROI here is risk mitigation, not necessarily revenue growth. It’s better that the risk materialized now, and we take care of it, then a few years down the road when you’ve invested even more in the logo and are facing an acquisition.”
Although I didn’t realize it at the time, I had reframed the event and shifted the conversation into a longer-term perspective, placing us both into calm, rational states of mind for brainstorming a plan of action. Broadening your perspective, it turns out, is one way to mitigate the effects of loss aversion.
After reflection, though, I see room for improvement. Next time, I’ll hold the conversation over Zoom, so I can gauge facial expression and tweak my approach to the client’s reaction. I’ll check in with the client periodically to invite two-way conversation, instead of one-way reporting. And I’ll put even more thought into my preparation, detailing our initial motivations behind filing for trademark protection as well as the risks, before diving right into the “bad news.” As they say, it’s not what you say but how you deliver it that counts.