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: 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 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– 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.


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.


One of the better blogs relating to trial issues is The Persuasive Litigator:  Dr. Ken Broda-Bahm recently wrote about jurors and their calculations regarding civil damages in this blog. He notes that a  recent study demonstrated that people on the jury generally move from a story, to a general sense of damages and then to a specific number. It has already been rather well established that offering a number, acting as a psychological anchor, plays an important role in their arriving at  a verdict in civil damages. The question of whether  you should suggest a verdict amount or leave it to the jury has been determined. You should ask for a figure. However, it also appears that in addition to the anchor you offer by way of a number we should also needs give meaningful reasons for it by providing reasons in context.

In this recent study the research team led by two psychologists from Cornell concluded that jurors are most often at a loss to know what number is appropriate. However, they note a number of studies establish a relationship between how bad the injuries are and the amount awarded. In general, the more serious the harm the larger the amount. Certainly, no real surprise for trial lawyers. However, we know from research that suggesting a verdict amount or number acts as a “primer” which influences the final conclusion.  If our damage range is high, the discussions are generally higher than a lower suggested number. The number acts as an anchor for the discussion of the appropriate amount.

What this study demonstrates is that when the dollar amount isn’t simply offered as an arbitrary selection, but is supported by meaningful references it results in a larger amount. Not only were the ultimate awards in the study closer to the anchor but were more predictable when there were meaningful reasons given to support it.

“Meaningful” refers to reasons which were deemed appropriate  to the number  suggested. While this will vary from case to case the important point is that we must do more than just throw out a number. We need to offer reasons why the numbers we suggest are appropriate, reasonable and fair. It is more important that we offer rational explanations for the numbers then the reasons offered. For example, in  the well known research study which involved people lined up at a copy machine and the research team would go to the front of the line asking to  use the copy machine first. In the cases where they gave no reason the request was granted about 60% of the time. In the case where they gave a reason such as they had an important meeting it was granted about 90% of the time. In fact the study showed that the reason wasn’t even important, it was the fact a reason was  given that made the difference. I have referred to this psychological principle as the “magic of the word because.”

Jurors are generally without any experience or education about correlating dollars to harm. They are searching for some one they can trust and reasons they believe justify their verdict because they all want to do the right thing. This is why some have argued that it is a mistake to ask for the bills or economic loss where they are relatively small compared to the verdict being sought. Jurors look for things they can rely upon as a measuring stick and the out-of-pocket loss represents something they can understand and are likely to use as a measuring stick for the general non-economic damages. For example, in a wrongful death case the out-of-pocket loss could be relatively small and it might be  better to waive those costs for fear it would hold down the general verdict.

The lesson for us is to  offer rational reasons for the amounts we argue for in our damage cases. I recommend dividing the damage request into two time periods: past and future. I recommend that these time periods be divided into economic damages and noneconomic damages.  Both periods should be divided into the elements of damages on the non-economic side of the argument. The first advantage is that by breaking the numbers up in this way they are more acceptable than simply putting down one lump amount. I recommend that the non-economic elements be argued from the standpoint of the impact each makes. Physical pain for example is not the same as mental pain. Disability has consequences that are different than the loss of enjoyment of life and so on.

The lesson here is always ask for a figure and always  combine it with reasons for the amount you ask .


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:

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.