Apologies and legal settlement: an empirical examination.

• Author: Robbennolt, Jennifer K.

TABLE OF CONTENTS INTRODUCTION I. LEGAL DEBATE OVER APOLOGIES A. Apologies and Admissibility B. Expressions of Sympathy C. Statutorily Protected Apologies D. Debate over Perceptions of Safe Apologies II. PRIOR PSYCHOLOGICAL RESEARCH ON APOLOGIES A. Psychological Responses to Apologies B. The Nature of the Apology C. Apologies and Legal Settlement III. THE PRESENT STUDIES A. Effects of Apologies on Settlement Decisionmaking 1. Effects of Apology on Settlement 2. Effects of Evidentiary Rules on Settlement 3. Summary B. Factors Influencing the Effects of Apologies 1. Responsibility and Injury 2. Effects of the Nature of the Apology 3. Effects of Evidentiary Rule 4. Summary IV. IMPLICATIONS OF RESULTS A. Evidentiary Protection for Apologies B. Defendants C. Plaintiffs D. The Role of the Lawyer CONCLUSION INTRODUCTION

It is often said that U.S. legal culture discourages apologies. (1) Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. (2) In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. (3) They claim that apologies will avert lawsuits and promote settlement. (4)

Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. (5) In addition, some commentators argue that defendants might offer expressions of sympathy, rather than apologies that explicitly accept responsibility for having caused injury, in order to reap the benefits of apologizing while minimizing the risks. (6) Critics of these so-called "safe" apologies argue, however, that apologies that avoid the legal consequences of apologizing--whether because the apology is merely an expression of sympathy or because it is protected by statute and is inadmissible--are devoid of moral content and likely ineffectual. (7)

Despite the recent surge of interest in, and debate over, the potential benefits of apologizing in legal cases, there has been very little empirical exploration (8) of the ways in which apologies actually affect settlement decisionmaking. (9) This Article seeks to fill the gap by providing much-needed data. The studies described here explore the proposition that apologies facilitate the settlement of civil disputes either by increasing potential plaintiffs' inclination to accept a particular settlement offer or by altering parties' perceptions and attributions in ways that might smooth the progress toward reaching a mutually satisfactory settlement agreement. More specifically, these studies explore the differing ways in which apologies are perceived and responded to when crafted to better insulate the offeror from legal liability (e.g., expressions of sympathy and statutorily protected apologies). This research suggests that an apology may favorably impact the prospects for settlement but that attention must be paid to both the nature of the apologetic expression and the circumstances of the individual case.

Part I describes the legal debate over the role of apologies in settlement decisionmaking. In particular, this Part describes the legal admissibility of apologies and the debate surrounding the offering of legally safe apologies. Part II details the previous empirical research that has examined the effects of apologies on perception and decisionmaking. Part III describes the empirical studies and presents the results. Part IV examines the implications of these results for the debate over evidentiary protection for apologies, for parties to litigation, and for attorneys representing clients in such litigation.

1. LEGAL DEBATE OVER APOLOGIES

   Recently, legal scholars have argued that apologizing has important benefits for both parties to a lawsuit, including increasing the possibilities for reaching settlements. (10) Accordingly, these scholars have suggested that lawyers should discuss apologies with their clients more often than they now do. They suggest that apologizing may avoid litigation altogether, and even where it does not it may reduce tension, antagonism, and anger so as to allow less protracted, more productive, more creative, and more satisfying negotiation. (11) Survey research suggests that claimants desire apologies and that some would not have filed suit had an apology been offered. (12) In addition, there is anecdotal evidence of injured parties who would not have filed lawsuits had apologies been proffered, (13) of settlement negotiations coming to a standstill over the issue of apology even after agreement on an appropriate damage amount has been reached, (14) of plaintiffs who would have preferred an apology as part of a settlement, (15) and of occasions on which a failure to apologize promoted litigation by adding insult to injury. (16) In those few cases that go to trial, it is suggested that a defendant who has apologized will look better in front of a jury who is asked to award damages, particularly punitive damages. (17) Decisions by corporations such as Wal-Mart and Ford to issue apologies in recent cases presumably reflect this intuition about apologies. (18)

   1. Apologies and Admissibility

      Many are concerned, however, that fears of apologies being used to establish legal liability chill the offering of apologies. In the context of civil disputes, the conventional wisdom among legal actors has been that an apology will be viewed as an admission of responsibility and will lead to increased legal liability--and accordingly, that apologies ought to be avoided. (19) Consistent with this view, Hiroshi Wagatsuma and Arthur Rosett note that "[a] crucial inhibition to a person making an apology in an American legal proceeding is the possibility that a sincere apology will be taken as an admission: evidence of the occurrence of the event and of the defendant's liability for it." (20)

      An apology offered by an alleged offender to an injured party is admissible as a party's own statement, an exception to the hearsay rule. (21) Thus, in most jurisdictions, apologies may be admitted to prove liability, unless Rule 408--protecting statements made in settlement discussions (22)--or a mediation statute--protecting statements made in mediation--reaches the apology. (23) Accordingly, apologies made outside of settlement negotiations (24) or mediation, including those made before the dispute has been transformed into a more formal legal negotiation (e.g., apologies offered at the scene of the accident), may not be protected and will likely be admissible. This may be particularly problematic to the extent that earlier settlement of disputes is thought to be beneficial and to the extent that the timing of the apology is a factor in its effectiveness. (25) In addition, Rule 408 does not preclude admission of the apology for a purpose other than to prove liability, such as for purposes of impeachment. (26)

      Thus, attorneys and others fear that any apology will be admitted into evidence as an admission of fault. (27) Consequently, some clients are hesitant to apologize. Likewise, lawyers and insurance companies may be unlikely to advise their clients to apologize or to make any statement that could be construed as an apology. In fact, they may actively discourage such statements. (28)

   2. Expressions of Sympathy

      In response to these concerns, several commentators have suggested that attorneys and clients consider crafting safe apologies that minimize the risk that they will be used as evidence of liability. (29) Specifically, defendants might offer partial apologies that merely express sympathy, but do not admit responsibility.

      As a general matter, in accounting for wrongful behavior, an offender can assert his or her innocence (e.g., by declaring he or she was not involved), offer an excuse that minimizes responsibility, or offer a justification for the act that legitimizes it. Alternatively, the offender can offer an apology that admits blame and expresses regret. (30) In defining apologies as remedial work, Erving Goffman writes:

      In its fullest form, the apology has several elements: expression of embarrassment and chagrin; clarification that one knows what conduct had been expected and sympathizes with the application of negative sanction; verbal rejection, repudiation, and disavowal of the wrong way of behaving along with vilification of the self that so behaved; espousal of the right way and an avowal henceforth to pursue that course; performance of penance and the volunteering of restitution. (31) Similarly, Nicholas Tavruchis suggests that, at a minimum, an apology must incorporate "acknowledgment of the legitimacy of the violated rule, admission of fault and responsibility for its violation, and the expression of genuine regret and remorse for the harm done." (32) In some sense, then, it is the admission of responsibility that distinguishes an apology from other forms of accounting for one's behavior.

      Nonetheless, some legal commentators suggest that defendants might "safely" offer apologies that are incomplete according to the above definitions--specifically, apologies that express sympathy, but do not admit fault or responsibility for the incident. For example, Deborah Levi suggests that "lawyers protective of their clients' interests might serve those interests by encouraging clients to apologize short of admitting liability." (33) Similarly, Jonathan Cohen suggests that "[w]hile a full apology will usually be most powerful, 'merely' expressing sympathy can often be a large step." (34) Defendants, therefore, might offer an apology that conveys sympathy--"I am sorry that you have been injured"--but does not acknowledge responsibility for the injuries inflicted. (35)

      Relying primarily on anecdotes, commentators assert that even these partial apologies (36) can avoid lawsuits and...