Recently I read a short article by Annie Mueller about fixing mistakes.(wisebread.com) She advocated a seven step process for dealing with mistakes. As I read the article I thought about admitted liability cases where the defense admits fault in an effort to minimize the verdict through excluding evidence of fault. In a state like Washington where we have no punitive damages, that means zero information is allowed about the negligent conduct. Of course, the defendant still is in a state of denial at trial. So how do you deal with that? I think some of the recommended steps are relevant. Here they are with my comments about the application to our admitted liability cases:
1. ACKNOWLEDGE THE MISTAKE DIRECTLY
Be straight forward. Directly and honestly, acknowledge the error. Say what you did and how much you regret it. In lawsuits, the defendant usually admits liability before trial and then wants to exclude it was done at the last minute. I think we should be allowed to show it was at the last minute, but whatever the situation we should emphasize this. In jury selection and opening note that there is no question who is at fault. In cross examination I’d ask the appropriate witness if they admit they were totally at fault and negligent
2. TAKE RESPONSIBILITY
Resist the urge to blame someone else. Don’t point fingers or make excuses because doing that only makes it sound like you care more about getting out of the trouble you caused. In lawsuits, this is the one area the defendant always fails to deal with properly. They want the jury to give them credit for acknowledging they were negligent, but they don’t want to accept the responsibility because that would require paying for the harm they did. Instead, the hide behind the admission of fault and claim they don’t really owe much for the harm. They will blame anyone and everything for harm except their own actions. I think we should high light that fact. They ask for praise for admitting fault so obvious they had little choice and then won’t accept the consequences.
These two little words I’m sorry-by the person who has suffered. “Please forgive me” is nice too. Be up front and tell them how sorry you are. In a lawsuit, a defendant who admits liability has acknowledged they are at fault, but by their denial of the harm caused really are not sorry at all. I talk about this. Were there any phone calls, cards, visits to the injured person to say they were sorry? If the defendant admits they were negligent, isn’t the normal thing we do when we are wrong is to say we are sorry?
4. OFFER A PRACTICAL WAY TO MAKE UP FOR THE MISTAKE
In most cases, you can think of a way to make amends. If you have broken, lost or otherwise damaged property, you should offer to pay for it. In lawsuits, this is the glaring omission of the defendant to admits fault. We should note that when we damage something through our fault the normal response is to offer to pay for it. When you knock the vase over in the shop you are visiting and break it, you don’t offer to pay a small percentage of the marked sales price. That’s not right nor fair nor honest. When a defendant causes harm they admit they caused, they should step up and pay the full price for the harm they did and not work at finding ways of avoiding doing the right thing.
5. GIVE THE OTHER PERSON TIME TO THINK AND RESPOND
The deeper the hurt, the more difficult it is for the person to let go of it. Don’t force and immediate response. In lawsuits, the admission of fault is usually close to trial and only after there has been a denial of fault, discovery and other delays. The plaintiff is put through a period of uncertainity. The honest way to proceed is to admit one is wrong early on and then discuss appropriate remdies.
6. LISTEN AND RESPOND
Let the other person talk. sometimes people just want to share how deeply they are hurt. In lawsuits it is the denial of the defendant of any fault, blaming others and refusing to make up for the harm done that is hurtful to the plaintiff. A last minute reversal for legal gain doesn’t make up for the months of stress and worry. That coupled with the refusal to accept responsibility even after admitting the defendant was at fault makes it worse.
7 . DO WHAT YOU SAID YOU WILL DO
The last point is most important. If you have offered a way to make up for the mistake, follow through quickly. Failing to do what you said you would do is worse then the originial mistake. In lawsuits this often involves the unnecessary dragging out of a case where the fault is obvious.