May 2001

Why Not Say "I’m Sorry"

by Jan Eric Peterson, WSBA President

As most people involved in dispute resolution or litigation know, an apology can go a long way toward resolution. How often have you heard your client say about the opposing party, "She didn’t even say she was sorry." Often, one of the things a victim wants most is an apology, and the defendant wants and needs to apologize. Somehow, we in the legal system stand in the way. This should change.

Saying "I’m sorry" can have at least a couple of meanings: (1) It can be an expression of sympathy, as in "I’m sorry this happened to you"; (2) It can also be an admission of fault, as in "I’m sorry I did this." It can be an expression of compassion or regret, and it’s the fear of the latter costing somebody some money that makes the legal system an impediment to apology rather than a facilitator to the resolution of disputes and healing. That’s where we’ve lost our way. We should allow for an apology without risk.

I propose an evidence rule that allows for an apology without it being evidence of an admission of culpability. Already, offers of compromise or settlement are inadmissible in a proceeding or trial to determine liability. ER 408. But admissions against interest or res gestae are admissible, and settlement agreements commonly include language that the compromising defendant admits no liability, even when liability and fault are perfectly clear. We should adopt an evidence rule that assures that apologies and benevolent gestures of sympathy are inadmissible in court as evidence of liability, while clear statements of fault are still fair game. I propose the following language as an addition or amendment to ER 408: Evidence of an apology or benevolent gestures of sympathy are not admissible to prove liability or fault for, or invalidity of, a claim of civil wrong.

Some losses could be avoided with a simple message of regret. I don’t know how many times we’ve heard clients say they would not have come to a lawyer if the doctor had apologized for his mistake in the first place. But many are trained by risk managers not to say "I’m sorry" because it might be construed as an admission of guilt. Further, an apology is often overlooked as a means for helping to resolve disputes that are already at issue, for serving as a lubricant to advance settlement, and contributing to a solution that meets all the client’s needs. One of those needs is to have someone validate the feeling of being wronged. Once that need is met, it takes the emotional symbolism out of the money and makes the negotiation of what is essentially a business deal for compensation much easier.

In my experience, if a defendant’s insurance company had brought the defendant to the mediation and opened with an apology, a financial settlement could have been achieved more easily. Further, it’s a healthy resolution for the defendant, who gets the cathartic benefit of a confession, making it a whole lot easier to put the entire thing behind him. Accepting responsibility and getting rid of the guilt is a healing process. The law should not only exact a judgment, assign responsibility and award compensation, but facilitate the healing process of dispute resolution. Even in war, a surrender can include an apology. It also avoids conquest and total annihilation. The law, in supplying a civil and bloodless system for dispute resolution, should also include the apology without necessarily meaning an admission against interest.

We should encourage, not discourage, the apology. Let’s say "I’m sorry" when it’s the right thing to do.

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