In the history of contests between men, it is hard to imagine a greater victory than the one that former prime minister John Howard has had over one of his most ardent critics, media commentator Phillip Adams.
From the moment Howard was elected, Adams railed against him at every opportunity, by his own admission trying to bring about Howard’s electoral defeat. Adams’ efforts had no discernible effect, and by the time Howard was defeated in an election, he had become Australia’s second-longest serving PM, widely lauded for his achievements in office.
Despite the fact that Howard has left the political scene, Adams continues to this day to tweet, post and write articles that are largely about why Howard should never have been elected – despite the fact that some 26 years have passed.
In short, the battle has long been over and the victor has left the stage; yet Adams continues to press his argument, the very embodiment of the metaphorical man that a more celebrated Adams – Douglas – imagined saying “and another thing…”, twenty minutes after admitting he’d lost the argument1.
Phillip Adams has never gotten over the fact that Howard became prime minister, and it haunts him still despite the passage of time. While that is a matter strictly for Adams to deal with, practitioners need to be alive to the fact that some clients can be similarly fixated – a situation that needs to be addressed.
Clients can become obsessed with past setbacks, decisions or outcomes, and that obsession cannot be left to fester. A client constantly stewing over past indignities, imagined or otherwise, is a client who may not be able to give their solicitor useful or coherent instructions. Getting clients past these points is arguably not a legal issue, but it is a practical necessity.
Some practitioners might think this is limited to areas like family law or litigation, where interim decisions can cause much angst, but it is a broader problem than that. Clients can become fixated on an unfavourable lease condition, the price of a property or an interim distribution from an estate. In every case, getting the client to accept what has happened and move to the next phase of the matter is essential to ensuring the best outcome for them, and for that matter, the practitioner.
The ability to move a client past a setback and on to the next phase of a matter will depend largely on the relationship the practitioner has with the client, and the practitioner’s general people skills. There are, however, some tips which will likely assist in all such circumstances.
Hardly a new concept in the realm of solicitor-client relationships, but it is much easier for a client to get past a setback or bad outcome if they were always genuinely aware that it might occur. This means having a full and frank discussion with a client to ensure they truly appreciate the possibility of a poor result, and the issue is even more acute if the chances of a good result are very low.
It is important to note that this is an ongoing obligation, not something that can be dealt with at the outset of an engagement and then forgotten about. Clients often overestimate the merits of their position and need regular reality-checking, especially if they have adopted an approach inconsistent with their solicitor’s advice.
De-brief bad results, and let the client speak
Clients look to lawyers for advice, guidance and assistance, and as a result it is easy for lawyers to adopt a lecturing style, explaining results and dictating future steps with little space for client feedback. When delivering bad news to a client, there is a natural desire to get it out of the way. However, the client will need time to process it, and part of that processing will need to involve a proper discussion.
Clients should be encouraged to ask questions about the result, and practitioners should answer those questions clearly and without judgement. Studies about vaccine resistance have revealed that dealing with such attitudes non-judgementally, and via answering questions, can reduce the fixed mindset of those who are hesitant to vaccinate children2. It is likely that a similar approach could assist in moving clients through fixed mindsets.
De-briefs should also take place as soon as possible after the result; while the day of the outcome or setback may be too soon if emotions are high, things should not be left to fester.
Don’t confront resistance head-on
While frank and fearless advice to the client is an ethical obligation of all solicitors, it needs to be kept in mind that clients have high levels of emotional investment in their matters, and often a great deal of tangible investment as well.
Moving more subtly towards a conclusion – in dialogue with the client rather than simply dictating to them – will be a more effective way of reducing resistance; and openly arguing with a client may well entrench their views.
Provide options, not ultimatums
There will usually be several ways to move forward with a matter, some more advisable than others. Allowing the client to think over the options, while making the consequences of each choice clear, will help them get past a bad result, as they will have some ownership of the problem.
Solicitors aren’t psychologists
While it is likely that practitioners will be able to assist most clients to move on from a setback or undesirable outcome, it may be that a client’s inability to move forward is more deep-seated than usual, and largely intractable. In these cases it is important for solicitors to recognise the limitations of their expertise, and guide the client towards professional help.
Psychologists often employ a technique called ‘motivational interviewing’ to assist people to get past fixed positions and views of the world, but becoming skilled in that process requires significant training in the discipline. Few solicitors would be able to easily add this to their toolkit, and the best that can be done in such situations is to identify the problem and direct a client to professional help should they need it.
How clients deal with adverse outcomes and setbacks will largely be a function of their personality, and assisting them to move forward will depend on how well a solicitor knows the client. As always, preparation is key – in addition to preparing clients properly for all possibilities, it is worth taking the time to consider how each client will respond if things go poorly.
Being on the lookout for signs of a client struggling to get over things is also a worthwhile investment of time – the earlier these issues are noted and addressed, the better.
Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre. The views expressed are those of the author.
1 So Long, and Thanks for All the Fish, Douglas Adams, 1984.
2 Impact of a vaccination promotion intervention using motivational interview techniques on long-term vaccine coverage: the PromoVac strategy, Lemaitre T, Carrier N, Farrands A, Gosselin V, Petit G, Gagneur A. Hum Vaccin Immunother. 2019;15(3):732-739. doi: 10.1080/21645515.2018.1549451. Epub 2019 Jan 4. PMID: 30457421; PMCID: PMC6988881.