Take Note: “I’m Sorry” Doesn’t Necessarily Mean “I’m Liable” 

There is a common perception that when you apologize, it means you’ve done something wrong. The Latin “mea culpa,” after all, means “through my fault.” In a litigation context, that perception on the part of lawyers and insurance companies can lead to the belief that you should avoid apologizing if you don’t want to accept liability. But we know from the research that an “I’m sorry” can do a lot of good: Psychologically, it can be satisfying for a victim, and persuasively, it can help boost the credibility of a source. And for some cases, it should make an appearance in a litigation context, especially when it is not necessarily a concession of liability.

Why Might an Apology Not Be a Concession?

The research article doesn’t go through all of the cases, of course, but does note some factors that help explain why an apology may not be a concession in most contexts. Boiling down the nuance, I think there are three main reasons.

Because It Focuses on Regret Rather than Self-Blame

It is one thing to express one’s own regret over a bad outcome, and another thing to admit to having caused that bad outcome. After all, when someone we know experiences a loss, like a death in the family, we’ll say “I’m sorry,” without that being taken as a confession. Of course, some might say that, despite the language, that isn’t really an apology (I’ve written in the past that a complete apology, for example, includes the component of an acceptance of responsibility). But expressing feelings of regret (e.g., We all truly wish that the operation would have been a success) can serve part of the functions of an apology.

Because It Focuses on Improvement Rather than Duty

In many contexts, we still want to avoid bad outcomes, even when they’re not caused by negligence. Doctors want patients to get well, product designers want products to be used safely, businesses want deals to go through. Acknowledging that, in hindsight, things could have gone better is not the same as blaming yourself for how they went. In the article, the researcher uses one example of Dutch bank who issued reassuring statements during a financial crisis that turned out to be incorrect, and how the trial included an apology from the CEO for publicizing when ended up being false information. In that case, it wasn’t a concession, though, because, while the company did try to base communications on the best available information, the company had no legal duty to issue accurate predictions. The article also refers to another case where a hospital apologized by acknowledging that a patient’s outcome likely would have been better if the patient wasn’t transferred. But because that could only have been known in hindsight, that does not create liability. Yes, it can be a fine line, and especially with a jury you would want to ensure that the limits on that duty are clear and credible, but it still might be helpful for decision-makers to understand that, duty or no duty, the defendant regrets the result and aims for better in the future.

Because the Concession Comes From Other Sources

A final important situation where an apology does not uniquely concede liability occurs when that concession has already been made in other ways. For example, when a defendant acknowledges before trial that they are not going to fight liability, that can be a smart choice in a situation where liability is unlikely to be successfully defended, and where conceding it might help you focus the case where you are stronger. But even in those situations, I sometimes run into defense attorneys who are reluctant to say anything that sounds like an apology – they would rather ignore the whole issue. The problem with that is that, even when they’re not asked to decide liability, jurors will still think about it. You can keep the statements general if you don’t want to open doors for the other side, but a jury who has heard some sincere regret and responsibility can be a jury that is a lot more open to your credibility, and to your arguments on causation and damages.