Litigation Strategy

The Power of an Apology

An apology is not only a potentially powerful moral act, but it can be a powerful tool in deterring or settling a lawsuit. This power was described in a recent California Bar Journal article, which discussed how actor James Woods backed off his hard-line refusal to settle with the hospital where his brother died after a heartfelt apology from the hospital’s president.

By contrast, a botched apology can exacerbate the conflict and become itself the subject of conflict. It is thus extremely important that any attorney considering a client apology as part of a case resolution understand some of the attributes of a well-executed apology.

There are some attorneys who always advise their client’s against offering an apology, at least until after settlement or other resolution is concluded. Because an apology can constitute an admission of liability, it is important to consider both the legal and practical consequences of an apology very carefully before recommending or advising one.

But when an apology is appropriate, consider the following tips to making it effective:

  • Prepare the apology; not by rehearsal, but by introspection. Overcoming denial or the impulse to excuse or justify mistakes is extremely challenging, but an apology needs to be delivered unequivocally.
  • Be genuine. Don’t give a half-hearted apology or one that is not genuine; it smacks of self-interest and will fan the flames of the conflict.
  • Demonstrate an understanding of the harm. The greater the degree of empathy for the victim of the harm, the more potent the apology.
  • Express remorse or regret. “I’m sorry” is an essential component of any apology.

The California Bar Journal reports that “the widest use of apologies in legal disputes involves medical malpractice.” On medical malpractice cases, check out CEB’s California Tort Guide, chap 9 (3d ed Cal CEB 1996). It may also be useful in wrongful employment termination cases — with the use of a formal, written apology to the employee stating that the employer was mistaken or regrets how the termination was handled. See Wrongful Employment Termination Practice §12.23 (2d ed Cal CEB 1997).

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