Apology within a moral dialectic: a reply to professor Robbennolt.

• Author: Taft, Lee
• Position: Response to Jennifer K. Robbennolt, Michigan Law Review, vol. 102, p. 460, December 2003

Over the last several years, much has been written about the role of apology in facilitating the resolution of legal disputes. (1) Within this body of work a debate has developed among legal scholars, practitioners, and legislators. Under traditional rules of evidence an apology which acknowledged fault would enter evidence as an admission against interest. Now there is a movement to legislatively "protect" apologies from the effects of the traditional rule in order to facilitate apology without evidentiary encumbrance. Scholars who have argued in favor of the relaxation of the traditional rule have largely relied on anecdotal evidence to support their arguments. Now, in her recent article Apologies and Legal Settlement, Professor Jennifer K. Robbennolt makes a long-overdue empirical contribution to analyses of the role of apology in settlement. (2) Robbennolt concludes that fault-admitting apologies will indeed enhance the likelihood of settlements, and that this is true regardless of whether or not the apology is "protected." This conclusion matters not only because it provides an empirical basis for the efficacy of fault-admitting apologies, but also because of its attraction to legislators who like to see empirical studies before changing long-standing rules of law like the evidentiary rule in question here.

While I appreciate Professor Robbennolt's useful insights, I also have two sets of concerns about her suggestion that policy discussion focus on the appropriateness of statutory protection of the full apology. First and primarily, her empirical results--even if interpreted by policymakers as showing the efficacy of the protected full apology in promoting settlement--do not by themselves make an adequate case for legislation protecting apology. Rather, those who favor legislation protecting full apology must take into account the moral dimension of apology, and the implications of giving this moral dimension short shrift. As I explain, even a solid empirical case showing a high increase in settlement due to apology would not adequately address the moral harm of legislative protection for apology. More than utility is at stake when a legislature tailors a moral process to fit within a system that is primarily adversarial.

A second concern relates to Professor Robbennolt's findings. Her findings, she suggests, show that participants, while aware of the different evidentiary rules, "did not adjust their assessments of the apologies received in response to those rules." (3) Thus, to the reader of this finding, the suggestion is that, to the injured person, the efficacy of apology is not dependent on its admissibility or whether the party offering the apology will face consequences tied to it. Robbennolt suggests a variety of factors that might explain this finding. I offer a different view of this finding, a finding that is crucial to the argument in favor of protected apology.

Robbennolt's study participants visited a website in order to read an accident scenario. (4) The participants were assigned the role of the injured party and then asked to evaluate a settlement offer from the other party. (5) Robbennolt introduced numerous control variables into this two-part study which enabled her to monitor how different kinds of apologies impacted settlement, whether the protection of the apologies was of significance to these participants, and how the severity of the injury affected the participants' perception of the apologies. (6)

Robbennolt adopted the language that has emerged in recent scholarship to identify the different kinds of apologies she was evaluating. A "partial apology" is one in which the offending party expresses sympathy and hope for a rapid recovery, but does not accept responsibility for the accident causing the injury. (7) A "full apology" includes the expression of sympathy contained in the partial apology but, importantly, adds an acknowledgment of responsibility: "I am sorry you were hurt. The accident was all my fault. I was going too fast and not watching where I was going until it was too late." (8)

Robbennolt found that the "offender who offered a full apology was seen as experiencing more regret, as more moral, and as more likely to be careful in the future than one offering a partial or no apology." (9) Consequently, the full apology "was viewed as more sufficient than either a partial apology or no apology." (10) As a result of these data, Robbennolt empirically established that apologies affect injured parties' inclination to...