By Dr. Ken Broda Bahm:
Apologies are very much in vogue. If you accidentally run your cruise ship aground, or surreptitiously wiretap phones in order to discover great newspaper stories, then it has become a well-known next step in the script to make a public apology. The shamed politician, loose-lipped celebrity, and the guilty criminal all recognize the value in facing the music and taking their lumps. We’ve written in the past that apologies figure prominently in civil litigation, as well as sometimes draining away some of the anger that motivates a suit, leading to a more favorable result in settlement or to lower damages in trial. For a defendant facing the likelihood of at least some liability, it is worth thinking about whether a timely “I’m sorry” might lead to an improvement.
But all apologies are not created equal. In fact, one interesting study reveals that there are multiple ways to make a fake apology. When “I’m sorry” isn’t sincere, jurors may catch on. Even where apologies are sincere, they are not necessarily wise. While there are some circumstances that make an apology strategic, there are other circumstances where, true to lawyers’ common concern, an apology can end up falling flat, just opening you up to a larger verdict.
This post takes a fresh look at apologies, considering the fake and the fatal, as well as the circumstances that make a sincere apology a good idea.
Don’t Make Fake Apologies
From our day-to-day interpersonal communications, we know that there are roundabout ways to include the word “sorry” without really taking responsibility for an action. E.g., “I’m sorry you feel that way…” “Sorry if anyone was offended…” “If that is what happened, then I’m sorry…” Israeli communication and journalism professor Zohar Kampf (2008) analyzed 354 public apologies and developed a typeology of the main ways to say “I’m sorry…but not really.” Five of the most frequently used ways are listed below, illustrated with the example of a corporate defendant following allegations of long-term pollutants at the site of its former factory.
1.) Apologize while undermining the offense itself: If indeed there is any damage to this vibrant and natural habitat, we are sorry for that.
2.) Apologize for the outcome but not the act: We regret the distress that this has caused many in the community.
3.) Apologize for the style but not the essence: We are sorry that we didn’t handle this better.
4.) Apologize for a specific component but not the entire offense: We wish we had more clearly communicated the risks to the community.
5.) Apologize with language that reduces one’s responsibility: We are sorry that these events, beyond our knowledge and control, were allowed to continue.
When you are the presumed wrongdoer in the situation, it is good to account for the fact that jurors and other audiences are likely to see your words as self-serving to begin with. In that context, the typical hedges that we are apt to place on an apology can take on greater importance. The best advice when making an apology in a litigation context, is not to add anything that will drain it of effectiveness. Say it when you mean it, and like you mean it.
And Don’t Make Fatal Apologies
A recent story in the Philadelphia Enquirer details the commonly feared situation of an apology, in this case for a medical accident just turning into fodder for litigation. After the death of a premature infant, doctors thought it would be useful to express their sorrow and explain what happened, and why a catheter was accidentally fed into the infant’s heart. The X-ray that was supposed to prevent that placement, wasn’t read until it was too late because the technician confused the birth date with the film date. The doctors and technicians involved explained all of this in a meeting with the grieving parents.
“Isn’t that a little like testifying against yourself?” the hospital’s head of legislative affairs asked later. Sure enough, the parents sued, filing a complaint including eight paragraphs about the apology and admission of responsibility. The story provides a cautionary note on the emphasis currently placed on apologies: It can end up leaking critical evidence, it isn’t necessarily a cure-all, and may not immediately lead to greater goodwill. The case has since settled, it comes as no surprise, and it might be argued in this case that the settlement offer should have been a part of the earlier meeting to avoid the impression that the apology was being offered instead of an acceptance of responsibility. “Sit around and sing ‘Kumbaya’ as long as nobody faces any consequences?” as the Plaintiffs’ attorney, Jonathan Cohen put it, “And we’re supposed to be ok with that? Come on.”
This incident does square with one recent study (De Cremer, Pillutla & Folmer, 2010). Dutch researchers found that people tend to overestimate the value they place on apologies. In a series of three experiments focusing on what psychologists call “forecasting errors,” they found that people rated the value of receiving an apology more highly when they imagined receiving the apology, than when they actually received the apology: It isn’t as much of a relief as you thought it would be. Imagining an apology also led to greater trust than actually receiving an apology. What that means is that the idea may be more powerful than the reality.
While there is also research showing that expressions of regret by litigants, including medical personnel, on the whole lead to fewer lawsuits and lower payouts (e.g., see Boully, 2007), there are also strong reasons to note that it depends on the situation.
When You Apologize, Make it Complete and Sincere
When you know that some attributed liability is inevitable, and when there is reason to believe that an acknowledgement adds to your credibility (a mock trial is a good opportunity to assess both), then an apology might be in order. As we’ve noted before, there are four parts to a good apology. Applied to the polluting company discussed above, it would look like this:
Remorse: We are extremely sorry for our decisions that allowed an unacceptable level of pollution at this site.
Responsibility: We have a commitment to this community and this land, and we take full responsibility for the damage that has been caused here.
Repair: We are committed to work with the government to see that this area is cleaned up as soon as possible.
Reform: We have already changed our policies to make certain that these actions and these decisions will never be allowed in the future.
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De Cremer, D., Pillutla, M., & Folmer, C. (2010). How Important Is an Apology to You?: Forecasting Errors in Evaluating the Value of Apologies Psychological Science, 22(1), 45-48 DOI: 10.1177/0956797610391101
Kampf, Z. (2009). Public (non-) apologies: The discourse of minimizing responsibility Journal of Pragmatics, 41(11), 2257-2270 DOI: 10.1016/j.pragma.2008.11.007
Photo Credit: Alicenwndrlnd, Flickr Creative Commons