By Dr. Ken Broda Bahm:
Let’s say the client you represent in litigation did something wrong. And, let’s further say, that they understand that they need to admit it and ask a jury to get past it. There’s still a case to be tried: Maybe it focuses on damages, or on causation, or on some aspects of liability. But part of the message has to be, “We are sorry,” and part of the goal is to obtain some measure of forgiveness from jurors, at least up to the point that they aren’t too distracted by the mistake to look fully and fairly at the other parts of the case.
So what causes people to be in a more forgiving mood? A research review article appeared in Psychology Today looking at recent studies of the conditions that lead to forgiveness. The article helpfully boils it down to three factors, and I believe all of them apply in a litigation setting. Those three factors are:
- Utility: The more useful you are to your targets, the more you’re likely to be forgiven.
- Closeness: The more you are in some ways close or similar to your targets, the more you’re likely to be forgiven.
- Remorse: The more you are genuine and complete in your apology, the more you’re likely to be forgiven.
When you are in trial or discovery and engaged in the delicate task of fashioning an apology message, it is worth thinking about each of these factors.
Utility
The article refers to recent studies in the journal Evolution and Human Behavior that suggest that a person’s perceived utility to us is a key mediator of our willingness to forgive someone. If they can be of benefit, then we are more willing to cut them some slack. That isn’t just self-interest, but also a product of the fact that we are more likely to be able to empathize with those who are engaged with us in some common benefit. The review quotes Japanese psychologist Yohsuke Ohtsubo, “People tend to be more forgiving of ‘useful’ partners than less useful ones.” So if you are seeking forgiveness, you will want to highlight your value to the target.
In corporate defense, that might translate to the “Good company story,” but with an eye toward benefit to the community and to the individuals on that jury. You also want to tell that story with the knowledge that you aren’t just building credibility, you are laying the groundwork for forgiveness.
Closeness
In the history of human development, the idea of empathy emerged as a familial concept: Those in our immediate social group are the first to benefit. And today, our willingness to give or to withhold empathy carries those same tribal roots. The Psychology Today review refers to research in Personality and Social Psychology Bulletin showing that, in response to an immoral act, we are more likely to stick up for someone perceived as “close” rather than “distant.” According to University of Michigan psychologist Ethan Kross, “We tend to think that the people who are close to us are good, positive people.” And that notion of “closeness” can have different meanings, not just relating to what is familial, but also proximal, or otherwise similar.
I have written about the rhetorical concept of closeness with an audience, also called “identification,” and attorneys and witnesses can show that by highlighting formal similarities (language and appearance), substantive similarities (similar conditions or experiences: We’re from the same town), or idealistic similarities (we believe in the same things). The more you make those similarities salient, the more likely an audience will be to forgive a perceived transgression.
Remorse
Part of asking for forgiveness is apologizing, but apologies are not all created equal. The words “I’m sorry” in some contexts are not enough to justify forgiveness, for example, when half apologies can come across as “I’m sorry you’re reacting this way,” or even “We’re sorry we got caught.” As we have written before, there are “Four R’s” to a complete apology:
Regret: I wish this had not happened.
Responsibility: It was my fault.
Repair: I’ll fix it.
Reform: I’ll change so it doesn’t happen again.
A complete apology touches all four of those bases. For example, a products company might express remorse over an accident, acknowledge that it was their design flaw that caused the accident, note that the design has been changed, and note that the testing process has been expanded to catch problems in the future. There are sometimes legal constraints on which of those can come in, but the gold standard is to include some element of all four facts. If you can’t do that, then the partial apology may just serve to increase perceived blame without motivating forgiveness.
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Other Posts on Apology and Forgiveness:
- Consider Character
- Apologize: The Right Way at the Right Time
- Don’t Let Your Apologies Make You Sorry: The Trial Message Checklist