The Power of Saying Sorry

There is often a knee-jerk response as lawyers to counsel our clients not to say “sorry” when litigation is possible. The thinking is that even a well-intended apology can be used against a party to determine liability in legal proceedings.

To some degree that is true. When someone gets in a car accident, a caring driver sometimes says sorry to the other party even when the driver is not legally at-fault because he or she feels badly there was an accident at all or that someone got hurt. In the past, that apology is often brought up in subsequent legal proceedings to try and establish liability where liability is disputed. This also can apply to other torts, like traditional negligence, wrongful termination, business partner disputes alleging breach of fiduciary duties and medical malpractice suits. California Evidence Code section 1160, which makes portions of statements (oral or written) or other gestures of “benevolence” when there is an accident inadmissible as evidence of liability, tries to not discourage such acts of goodwill, but does not apply to situations where there was no physical injury or death and does not apply to statements of fault. For that reason, in the extreme, some lawyers counsel never to say sorry in tort disputes regardless of the circumstances because of it being argued to be an admission of liability or merely even a sign of weakness that will diminish bargaining positions during settlement.

But sometimes not saying sorry just makes it worse. While it is true that plaintiffs sometimes sue just to maximize financial outcomes for themselves, there are often other motivations. Misunderstanding, hurt feelings, belief that a party is not taking responsibility for their actions, moral outrage at perceived injustice, not feeling seen and heard, or even fear that the same wrong will be committed against someone else if action is not taken all are other motivations for aggrieved parties. Acknowledging those other reasons why plaintiffs are motivated and apologizing where appropriate can facilitate a resolution between the parties in the form of settlement.

That was true for actor James Woods. When Woods’s brother, Michael, died of a heart attack while sitting unattended on a gurney at Kent Hospital in Warwick, Rhode Island, James and his nephew sued the hospital and had no intention of even talking to hospital representatives due to their outrage at the situation. However, a “change in rhetoric” that included a heartfelt apology from the hospital president softened James’s feelings towards the hospital and ultimately opened the door to a financial settlement that took care of his brother’s children and brought a promise to create a patient safety institute in Michael’s name.

When asked why James changed his mind, he reported that the apology “made discussion possible in a case where I had no interest in settlement and was absolutely certain of victory,” His entire family agreed that the hospital president’s “apology was genuine and not a ploy.”

Several studies have been done that support the notion that there is a time and place for apologies in pre-litigation and litigation disputes. University of Illinois Law Professor Jennifer Robbennolt has done a series of studies that show apologies can help resolve disputes in wide range of tort actions. Based on her finding Robbennolt reasoned, “The apology fulfills some of the goals that triggered the suit, such as a need for respect to assign responsibility and to get a sense that what happened won’t happen again. So receiving an apology can reduce financial aspirations and make it possible for parties to enter into discussions about settlement.”

But the studies also indicate that an apology that comes across as insincere, self-serving or contrived can have the opposite effect, engendering even harder feelings that make settlement difficult, if not impossible.

There is also a time and place consideration. In the context of settlement discussions in California or at mediation, an apology can be given that remains confidential and not admissible as evidence against the apologizing party. (See Evid. Code § 1152.) While that context may likely raise the suspicions of the apologizing party’s sincerity, done with real heartfelt intent, it can offer an opportunity for the parties to come together in a different spirit of compromise and reconciliation.

The takeaway is that done right, a timely and genuine sorry in the right context has the power to change the course and outcome of even the worst matters.