APOLOGY & ADMISSION OF LIABILITY

Insurance companies advise their insureds  in malpractice situations to apologize to the injured person. That’s because their research indicates that a prompt concession of fault with an apology motivates the injured person to either not assert a claim at all or to be willing to compromise more quickly and easily. They have enough confidence in this idea to lobby legislators to adopt statutes that prohibit the introduction into evidence that apology or admission of fault has been made in such cases. Washington state has such a statute.

As to admissions of  liability and apology, I’ve written about the subject generally in the past. http://plaintifftriallawyertips.com/how-to-admit-you-were-wrong-accept-responsibility

The website www.thejuryexpert.com as recently published an article by Dr.Kevin Boully Ph.D entitled “Mea culpa in the courtroom: apology as a trial strategy.” In it he discusses the effect of a defendant admitting wrongdoing in trial with an apology. While the article generally discusses the concept two particular parts I thought were especially significant. The first was his description of what constitutes a full apology, which he calls “the Four Rs.” They are:

  1. Remorse  “the people of Acme Corporation want Mr. and Mrs. Jones to know they are extremely sorry, and you’ll hear them express their remorse in this trial.”
  2. Responsibility  “The Acme Corporation takes full responsibility for what happened.”
  3. Repair “we want Mr. and Mrs. Jones to know we are willing to make this situation right and to do whatever we can to remedy the damage they have experienced in this case.”
  4. Reform  “the Acme Corporation has already begun to implement changes in its policies, the supervision of its employees, and the procedures in order to prevent a similar outcome happening in the future.”

Let’s examine for the moment these essential parts of a correct apology.  The first thing that occurs to me is the question of admissibility of this outline in an actual trial. After all, the law and the instructions to the jury are replete with admonitions not to allow sympathy to play the role in the jurors decision. The entire idea of an apology involves an appeal for forgiveness as well as sympathy. While the statute or rule may allow a defendant that to admit to liability and thereby, in nonpunitive damage states, exclude evidence of liability, it should not allow the defendant to additionally ask for sympathy. This is particularly true where a defendant has consistently denied liability through extensive discovery depositions only to concede it on the eve of trial. While the existence of the admission may be admissible the rest should not be.

More importantly my reaction to the elements of a perfect apology is that it makes a wonderful outline for cross examination of a corporate representative: “Are you sorry?”  “Do you accept full responsibility for what happened?” “Would you do the same thing again?” What have you done to prevent a similar outcome happening in the future?” In a trial involving in multi national pharmaceutical company I had the opportunity of cross-examining their CEO at trial. His poor demeanor and bad responses on cross examination about these kinds of subjects played an important role in the jurors  impression of the defendant pharmaceutical company in rendering their record size verdict.

The second significant part of this article deals with the reaction when the apology is attempted but not done right. It turns out that a failed apology causes more harm than no apology at all. The article refers to the classic example of Exxon’s botched” apology in the oil spill case. The author says:

” Such a failed apology has many cousins, all of which communicate the message that while your client is saying they are sorry for what happened, they don’t believe it was their fault, they are  not interested in repairing the damage, they aren’t truly interested in fixing the problem, and by the way, they aren’t really sorry.”

The author points out that the badly done apology  “fuels rather than reducing juror anger.”

Note author’s summary I quoted in the previous paragraph dovetails nicely with the idea of using “The Four Rs” in cross-examination  plus the quote in argument to the jury.

There is an old proverb that says “Don’t  strike the emperor unless  you kill him.” You can only hope for a badly done apology by a defendant to the jury because it  causes jury resentment and negative reaction while it opens  the door to effective cross examination and argument. If allowed, it should  also offer opportunities on cross  examination about  each aspect of the requirements for a perfect apology.

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