Apologies and Settlement Jennifer

Footnotes 1. See generally NICHOLAS TAVUCHIS, MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION (1991). 2. It is worth noting that, empirically, it is not clear whether, under what circumstances, or to what degree an apology might alter the risk of an adverse liability determination. Whether apologies influence liability decision making in civil cases has not been examined in empirical studies. On one hand, in the criminal context, confession evidence has been shown to exert a powerful effect on decision making. See e.g., Saul Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOL. SCI. PUB. INT. 33 (2004); Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469 (1997). On the other hand, studies examining attributions of responsibility in nonlegal contexts have found that offenders who apologize are seen as having acted less intentionally and are blamed less. See e.g., Steven J. Scher & John M. Darley, How Effective Are the Things People Say to Apologize? Effects of the Realization of the Apology Speech Act, 26 J. PSYCHOLINGUISTIC RES. 127 (1997). 3. Thomas H. Gallagher et al., Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medical Errors, 289 JAMA 1001 (2003). 4. See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009 (1999); Erin Ann O’Hara & Douglas Yarn, On Apology and Consilience, 77 WASH. L. REV. 1121 (2002); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221 (1999); Daniel Shuman, The Role of Apology in Tort Law, 83 JUDICATURE 180 (2000); Lee Taft, Apology Subverted: The Commodification of Apology, 109 YALE L.J. 1135 (2000). 5. MASS. GEN. LAWS ANN. CH. 233, § 23D (West 1986). When one person allegedly injures another, he or she will often attempt to provide an account for the conduct that led to the injury. Specifically, he or she might attempt to disavow, explain, excuse, or justify the behavior that purportedly led to the injury. Alternately, he or she might offer an apology to the injured person. Apologies can be distinguished from other forms of accounting in that they acknowledge responsibility for the conduct that caused the harm. Accepting blame and expressing regret for one’s behavior signals a recognition of the norm or rule that was violated and of the harm caused to the other.1 Such acknowledgment can be complicated in the context of litigation. When the offense is such that it raises the possible involvement of the legal system, defendants, defense counsel, and insurance companies have traditionally worried that apologizing will only make things worse for the defendant; specifically, that any apology will be viewed as an admission and will lead to more certain legal liability.2 Indeed, there is evidence that although civil defendants, such as physicians in medical malpractice cases, may sometimes desire to offer apologies, they are also concerned that disclosure or acceptance of responsibility would increase the possibility for legal liability.3 As a general matter, of course, an apology by a party to litigation is potentially admissible under the exception to the hearsay rule that allows admission of a party’s own statements. Other rules of evidence may prevent the admission of certain apologetic statements in some circumstances – for example, statements made in settlement discussions may be protected under Rule 408. However, apologies that are made outside of these contexts are potentially admissible. Consequently, many defendants avoid apologizing and are so counseled by their attorneys and insurers. Despite the potential risks, however, there has been growing interest in the possibility that clients might benefit, legally and otherwise, from apologizing.4 Indeed, empirical studies examining the impact of apologies in a variety of contexts have demonstrated a range of positive effects that flow from apologizing. These effects include more favorable attributions, more positive and less negative emotion for both apologizer and recipient, improved physiological responses for both parties, improved future relations, decreased need to punish, and more likely forgiveness. In addition to the potential physical, psychological, and relational benefits of apologies, commentators have argued that apologies have the potential to facilitate the settlement of legal disputes—breaking impasse to allow productive negotiation, allowing resolution to occur more quickly, addressing parties’ non-legal concerns, or resulting in financial settlement terms that are more favorable to the one who has apologized. Some proponents of encouraging apologies in litigation have considered how defendants who desire to apologize might do so “safely” given the patchwork of evidentiary protection traditionally available. One recommendation has been that defendants consider offering statements that express sympathy for the other party, but that stop short of admitting responsibility for having caused injury (i.e., “I’m sorry you were hurt” rather than “I am sorry I hurt you.”). These sympathetic expressions are not complete apologies by most definitions—lacking, in particular, an acknowledgment of responsibility for the behavior that led to the harm. However, it is argued that by offering at least an expression of sympathy, defendants can reap some of the benefits of apologizing while simultaneously minimizing any increase in liability risk. Concurrently, many states have recently enacted statutes that are intended to encourage and protect certain apologetic expressions by making them inadmissible in court. Massachusetts enacted the first statute preventing the admission of some apologies in 1986.5 Since then, over two-thirds