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    Wisconsin Lawyer
    October 01, 2015

    So sorry! Mea culpa! Apologizing as Part of a Litigation Strategy

    A sincere "I'm sorry" can’t undo an error, but it can keep an honest mistake from becoming a lawsuit.

    Alan M. Tuerkheimer

    dead flowers

    The list of apologies made to the American public in the last decade is exhaustive, and most people do not need to think long and hard to recollect a famous sports figure, politician, or Hollywood celebrity who made an official public apology. Which apologizers stand out to you? Mel Gibson? Tiger Woods? Mark Sanford? Eliot Spitzer? Reese Witherspoon? Whole Foods?

    A great deal can be learned from public apologies, and the way we feel about the person making the apology typically depends on three facets of the actual apology: 1) what was said (words used); 2) how it was said (tone, demeanor, sincerity, and so on); and 3) based on the what and how, why we believe the apology was made in the first place. (This third element is also known as motivational attribution – did the person apologize because he or she was genuinely contrite or because he or she was caught and simply is trying to save face?).

    What Is and Isn’t an Apology

    Apologizing is an effective mode of communication that on some level everyone is familiar with. Many lawyers seem to shun making any type of apology, perhaps because of years of training and experience encouraging them to not cede any ground.

    Alan M. TuerkheimerAlan M. Tuerkheimer, U.W. 2000, is the founder of Trial Methods, Chicago, where he is the principal and a jury consultant. He has experience conducting jury research, including focus groups, mock trials, and venue attitude surveys; voir dire; and jury selection.

    But there is more to the equation than thinking an apology is merely an admission of fault. Think of your audience. Jurors are very familiar with apologies and do not think of apologies the same way many lawyers do. In their day-to-day lives, jurors deal with apologies all the time. “Sorry I forgot to walk your dog.” “Sorry I was late; I got stuck in traffic.” “Sorry I overcooked the brats.”

    A true apology keeps the focus on your actions and not on the other person’s response. For example, “I’m sorry that you felt hurt by what I said at the party last night” is not an apology. Try instead, “I’m sorry about what I said at the party last night. It was insensitive and uncalled for.” Own your behavior and apologize for it, period.

    At its most fundamental level, an apology diffuses an impulse to express outrage or send a message by disarming with empathy. Have you ever prepared to berate someone for some type of bad behavior, thinking you are about to have a major confrontation of epic proportions as you teach this person that what he or she did was wrong, only to have the person express empathy, see your point of view, and then ultimately apologize? When this happens, typically your blood pressure falls and your anger eventually subsides.

    Apologies as Legal Strategy

    In a similar vein, apologizing can also be a litigation strategy. An apology can be part of an opening statement or even a strategy to stave off a lawsuit. Juror research is replete with studies showing doctors are less likely to be sued when they issue some type of apology. I have also seen this in my role as trial consultant. The bottom line is people are less combative when a proper apology is issued, and as a result their proclivity to sue wanes.

    Consider the following two examples of exchanges between a customer and a manager at the local pharmacy. A concerned customer speaks to the manager because the prescription was for pills of a certain dose but the technician filled it with pills of twice that strength:

    Customer: Hi, I have a problem here, and I really need answers since I was supposed to only take 100mg at a time and each pill was 200mg and I became quite ill. How on earth does this happen?

    Manager: Have you ever been ill like that prior to taking the medicine?

    Customer: No, I felt horrible, and it was clearly because I took too much of this medicine. When I called the store where I picked up the medicine to find out what happened, no one cared.

    Manager: Just take it easy. I want to get to the bottom of this. That particular store is typically overwhelmed. Now, how did you notice the dosage was off?

    Customer: How did I notice? After getting stomach problems and sweating, I looked at the label and noticed it said 200mg and usually I had been taking 100mg or half of that.

    Manager: Okay, well, I am sorry you were given the wrong medication, but it seems apparent that you could have noticed this beforehand. We did make a mistake but I have to think that had you been a little more careful, this would not have happened.

    Customer: How can you sit here telling me this when you and your staff messed up? I trusted you. I did not read it because I trust I will get the proper medicine.

    Based on the above exchange, this customer remains irate because he basically got into a shouting match with the manager. Would a manager be instructed to not fully apologize in situations like this because it might be used against him or her if litigation arises? Now compare that to the following exchange handled differently:

    Customer: Hi, I have a problem here and I really need answers since I was supposed to only take 100mg at a time and each pill contained 200mg and I became quite ill. How on earth does this happen?

    Manager: First off, let me say this is entirely unacceptable, and I understand why you are upset.

    Customer: Okay.

    Manager: I, and City Pharmacy, are grateful that you have been a long-time customer and we realize the seriousness of what happened.

    Customer: Yes, it could have been quite serious had I not noticed the error.

    Manager: Absolutely. I am really glad you noticed the mistake, but it should never have come to that since we have very high standards and did not meet those standards in this case.

    Customer: Imagine how surprised I was when realizing the mix-up.

    Manager: I fully can see why you would react that way; most people would in that situation. Again, I am very sorry for this mistake. We will make sure this does not happen again.

    Clearly, if a sincere apology is made, a customer will be much less likely to file a lawsuit as a result of a mistake in filling a prescription. Apologizing can reduce tension, change the dynamics of the discussion, humanize large corporations, avoid lawsuits, and promote settlement. Being adversarial is second nature to most lawyers, but sometimes taking a more conciliatory approach can make for a more successful representation of a client.

    What Makes an Apology Effective

    Why do apologies work so well? Apologies make people appear more likeable. Mock jury research shows that those who express remorse are sued less often and viewed more positively. One of the most powerful things a plaintiff can say in court is that he or she never received any type of apology.

    However, apologizing is an art, and an insincere or perfunctory attempt can drastically backfire. Do not just say “I am sorry”; there is much more to apologizing than uttering those words. In fact, it is better to not apologize at all than to apologize, seem to accept some responsibility for what happened, and then turn around and say something that seems to once again deflect responsibility.

    Apologizing might not directly lead to a settlement or prevent a lawsuit, but it can alter the dynamics of the litigation landscape and make it more likely a favorable settlement can be reached. Resolution of a complaint directed at a company will be quicker and less costly if company representatives reach out and express an apology for what happened. Keep in mind there is a range of apologies to choose from depending on the extent of accountability a company is willing to accept. Choosing which apology fits the situation can make or break the apology.

    The full apology expresses remorse and acknowledges responsibility for playing a causal role in an event.

    A partial apology expresses remorse or regret but stops short of accepting responsibility for what took place. The partial apology emphasizes sympathy but is very light on responsibility.

    A botched apology is worse than not apologizing at all. Any apology followed by “but” is a troubled apology from the start because it looks like the person or company is making excuses. A true apology does not include the word “but” (“I’m sorry, but …”).Adding this one word after an otherwise meaningful apology introduces an element of retracting the apology and dodging responsibility.

    A conflicting apology (we are responsible for A but not for B) appeals to lawyers but not to jurors. Examples are “while we are sorry we did not clear up the puddle you slipped on, you should have seen it and avoided it” and “although the driver is sorry he did not step on the brakes sooner, you shouldn’t have been following so close behind our truck.” Just as apologies followed by a “but” are troublesome, so also are apologies that start with “While.” What follows the “but” or “while” usually does not help.


    Apologies work so well because a well-crafted apology that is sincere humanizes the person apologizing. Apologies also provide closure in many circumstances.

    Don’t ever blame the person you are apologizing to. An apology is about the person receiving it, not the person giving it. Do not give a cosmetic apology, one offered for the sole purpose of making the party or company look good but that lacks substance and sincerity. Jurors understand apologies and appreciate when they are made in an honest and meaningful manner.​

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