Category Archives: COMMUNICATION

LEGAL IMPLICATIONS OF AN APOLOGY

I was recently sent an article about the effect of apology by a journalist from the BBC which was interesting. The failure to make an apology has as  serious consequences as making one does. For  example, a bad, or delayed or non apology can cause a great deal of harm. I think the biggest violators of  basic correct apology are politicians and corporations. After all, their attitude is “being powerful means never saying  you are sorry” and many operate on the proposition don’t ask permission, just do it.  

For the U.S. the classical illustration of  how not to make a corporate apology was Tony Hayward’s apology for the BP golf spill which to this  day is an underlying  reason why there is continued resentment and distrust of BP plus ongoing litigation.

The psychology involved is very  interesting. See recent NY Times  article: http://www.nytimes.com/2015/06/28/style/i-cant-apologize-sorry.html In my trials I have capitalized on the corporate reluctance to  apologize. It is human nature to not want to say you are sorry and in legal settings seen as inadvisable by many lawyers. Here are some thoughts about apologies:

Benefit of Apology

Dr. Jennifer Robbennolt, a University of Illinois law professor has written an article Apologies and Medical Error www.ncbi.nim.nih.gov/pmc/articles/PMC2628492/ Some 550 people were surveyed about their reaction to apologies offered during settlement negotiations in a hypothetical injury case study. Her findings suggest apologies can actually play a positive role in settling legal cases. The studies showed that statements acknowledging an error and the consequences, while communicating regret for having caused the harm can decrease blame, anger, and decrease the risk of litigation.

The article cites another study where patients were asked to evaluate a number of scenarios describing medical errors from the perspective of the injured patient. 98% indicated that they expected a physician’s acknowledgment of the error. In another study 88% of the people wanted the doctor to tell them that they were sincerely sorry for what happened. Focus groups have indicated similar preferences.

Robbennolt’s studies indicate that patients who file lawsuits are motivated to find out what happened and to prevent future injury. In another study surveying medical malpractice claim to determine the motive for filing a malpractice case 90% indicated they wanted to prevent the same thing from happening to somebody else and to receive an explanation for what happened. Yet in a study of physicians about disclosure of problems to patients, 57% referred to the event as a “complication” or “problem” Fewer than half of the surgeons offered some expression of apology or regret and only 8% assured the patient the error would be

The reluctance to apologize is largely based upon the fear of risk of litigation. However Robbennolt indicates that empirical research has demonstrated that most injured patients do not file lawsuits and that physicians substantially over estimate the risk of being sued. Further apologies tend to diminish blame and make patients less likely to sue.

Effective Apology

Studies have shown not any statement will suffice as an effective apology. In an article 8 essentials of an effective apology www.leadingwithtrust.com/2014/03/02//8-essentials– of–an–effective-apology/  The article suggested that there are eight essential elements of an effective apology

Accept responsibility for your actions.

  1. Pick the right time to apologize
  2. Say “I’m sorry,” not “I apologize”
  3. Be sincere and express empathy for how you hurt the other person
  4. Don’t use conditional language
  5. Don’t offer excuses or explanations
  6. Listen figure 8 commit to not repeating the behavior.

LEGAL NOTES

As of January 2009 apology laws had been enacted in 36 states. (Does Sorry work? (Benjamin Ho Cornell University and Elaine Liu University of Houston abstract October 2010) their paper concluded that “we find that in the short run the law increases the number of resolved cases while decreasing the average settlement payment for cases with more significant and permanent injuries. Our findings suggest that apology laws reduce the amount of time it takes to reach a settlement in what would normally be protracted lawsuits, leading to more resolve cases in the short run. In the long run, the evidence suggests there could be fewer cases over all.”

Washington has adopted a statute, RCW 5.64.010 which makes apologies and conciliatory efforts in a malpractice case made within 30 days of the event inadmissible as evidence in a later malpractice trial.

ADVICE FROM THE SON OF A LAWYER & THOUGHTS ABOUT EXPERT WITNESSES

I have a two unrelated subjects I’d like to discuss with you today. One is helpful advice from a non lawyer which we can benefit from and the other some thoughts about advice for your expert witnesses.

Regarding the first, Sunday’s NY Times has an interview with Jake Wobbrock who is the founding CEO of AnswerDash. It is a service that can be downloaded to a website to create answers to customers questions. Jake is professor at the U of W in Seattle and what is of interest is that his father is Portland plaintiff’s lawyer Larry Wobbrock, one of Oregon’s very best trial lawyers,  some of you may know. Here is one article about Larry’s skills as a plaintiff lawyer:

http://www.superlawyers.com/oregon/lawfirm/Lawrence-Wobbrock-Trial-Lawyer-PC/171692ca-31e3-4e8a-ae0e-1e2863e916ce.html

Jake says, in the interview, that his father taught him that in life everyone would like to be a hero at something but that there is no way to be a hero without risking failure, or as he says become “the goat.” He explains his father taught him that if you are at the foul line in a basketball game with two shots which can win the game and no time left you have the opportunity to be a hero but only at the risk of being the goat. His father told him that if you shy away out of fear of being the goat, you can never be a hero. It’s only by embracing both you can become a hero. He says we should seek growth through risk taking, not comfort. Great advice for those of us fearful of acting outside of our comfort zone as plaintiff lawyers.

Jake says to be able to maintain focus for sustained periods is a requirement of greatness. Identifying what is important sand sticking with it is essential. Great advice for those of us who allow defense distractions to get us to chase multiple rabbits when we should have singular focus in our cases.

He says that in hiring people for his company he looks for “the three A’s” which are: Aptitude, attitude and appetite. Aptitude is the skill and ability to perform. Attitude refers to a positive determination to succeed. Appetite refers to a passion for the work, to accomplish and to succeed. Certainly no great plaintiff’s lawyer ever succeeded without passion for those we represent.

The second subject I’m discussing because of an article I recently read about it which I thought made sense. Preparing experts as witnesses is always a challenge because they very often are not open to advice since they see themselves as experts and experts give, not take, advice. Yet I’ve seen some really bad expert testimony in my life, although I flatter myself that most of it came from the defense expert on cross examination. So here are a few fundamental thoughts about being an expert witness:

  1. Listen carefully & think before you answer. Listening is the single most important thing you can do. Thinking is also critical, but not long pauses after every question before responding.
  2. Answer only one question at a time. Far too often witnesses fail to grasp that a question is really not one question but more than one – we call it a compound question. How it’s handled is important. The expert should not be a smart aleck or become a lawyer in their response. If it is a simple statement one could simply break the answer into two answers: “As to your question about drugs. The answer is that there were none. As to your question about speeding, the car was going within the speed limit.” Or one could say: “I’m sorry , but there was more than one question in your statement. Could you restate your question.”  If you only listen to the first and last part of a complex compound question you may give incorrect testimony, Listen carefully.
  3. If important, respond if cut off or interrupted. Not all interruptions to your answer are important and even if you don’t point out the interruption it can reflect back on the manners of the lawyer asking. But, if important, simply wait until he lawyer has finished and say: “I’m sorry, but I had not finished answer your last question which I would like to finish.” Usually the judge will help you.
  4. Don’t guess. While it’s important for you never to act like you are deliberately being uncooperative by refusing to acknowledge obvious things you should, it is equally important you do not guess at important matters. If you don’t know the answer say so. If you know, but can’t remember say “I can’t recall at this time” or “without refreshing my memory.”  If  it is outside your expert area, say so. If you weren’t asked to investigate a subject say “That’s not something I asked to review and haven’t done so.”
  5. What about “yes or no” questions? If you can answer truthfully do so  with a yes or a no and follow with explanation “because…..” If you can’t say so: “I can’t answer truthfully with only a yes or a no without an explanation.” Or consider, if true, “yes, but only the way you have stated the question, but not in this case”

So, the basic rules for experts  are (1) listen and make sure you understand before you answer. Don’t answer until you understand (2) think before you answer (3) be calm and professionally respectful no matter what the demeanor of the cross examiner and (4) tell the truth.

HOW MUCH WILL YOU GIVE ME FOR THIS JUG OF WATER? PERSUASION PRINCIPLES

During a flight in Europe I read an article in a business magazine I pulled  from the back of the seat in front of me. It dealt with one of my favorite subjects:  persuasion. The author, Steve Martin, begins the article describing a story he says an English business man  was fond of telling. It involved a young man who came to his office looking for a job. He said that after listening for a few minutes the business man pushed  a large jug of water on his desk towards him and said: “Young man, I have been told that you are quite the persuader. So, sell me that jug of water.” After hesitating for a moment, the job seeker got up from his chair, picked up a wastepaper basket with discarded paper and placed it next to the jug of water on the desk. Then he lit a match and set the paper on fire. Turning to his prospective employer he said: “How much will you give me for this jug of water?”

The author of the article pointed out to make the sale the young man did not point out any features of the water jug nor discuss  savings and purchasing it but instead changed the psychological context in which it was offered for sale. Persuasion scientist have established the fact that successful persuasion is frequently governed more by context than content of the sales pitch.

The young man wasn’t selling the water as a  product in the abstract. He was  selling it to satisfy an immediate need for water. For example, a buyer wanting a 1/8 inch drill bit is not buying it for the inherent quality of the drill bit. Rather, he needs a 1/8  inch hole drilled which is the reason these buying the drill. Someone once wrote a book on sales they titled “sell the sizzle and not the steak.”

Think about our cases. While we are presenting a client to the jury and asking them to  evaluate the client’s case under tort principles,  we should be selling the juror’s need to feel safe from the kind of negligence that injured our client, to feel like they are doing something important and to feel satisfied and  proud of their service as jurors.

The change of context can take more than one form. Another context changer is that of contrast. Research shows that what people experience first has a disproportionate influence on their perception of the next thing they see.  As the article points out, that’s why a $ $60 bottle of wine appears to be a great value after you’ve been first shown  a $120 bottle of wine. Just the opposite reaction occurs if you had been first showing a $10 bottle of wine. Comparison influences perception.

Think about your summation for damages. Don’t we frequently use this principle when we talking about values in the real world  –  paintings that have sold at auction for multi millions and the salaries paid sports stars in comparison to what we say is the value of our client’s case?

There is much to be learned from the research done in the business world in advertising and sales. Our professional role is that of persuasion in our client’s stead. Learn from business  world the principles that work.