Apologies and Adversaries: Like Oil and Water

Conventional wisdom says that lawyers should prevent their clients from issuing generous apologies lest the apology be construed as an admission of guilt. Litigious adversaries don't say sorry, and when they must, they certainly don't admit fault. Yet empirical research conducted by Jennifer Robbennolt, professor of law and psychology at the University of Illinois, flies in the face of conventional wisdom and demonstrates that sincere apologies, especially those that include admissions of guilt, create more favorable settlement opportunities for contrite litigants.

In Professor Robbennolt's words, apologies contribute to "decreasing negative emotion, improving expectations about the future conduct and relationship of the parties, changing negotiation aspirations and fairness judgments, and increasing willingness to accept an offer of settlement."  Unfortunately, since attorneys and their clients often don't see eye-to-eye on the issue of apologies the apology card is underutilized in litigation. 

Robbennolt's work was profiled this weekend in a New York Times article on apologies.

The article describes one of Robbennolt's experiments. She presented test subjects with one of three hypothetical situation involving a cyclist who hits a pedestrian. In one scenario, the cyclist does not apologize. In a second, the cyclist offers the pedestrian a partial apology: one that indicates remorse but does not accept responsibility for the injury. The example is "I am so sorry that you were hurt, and I really hope that you feel better soon." In a third situation, the cyclist offers the pedestrian a full apology: one which both indicates remorse and assumes responsibility for the injury: something like "I am so sorry that you were hurt. The accident was all my fault, I was going too fast and not watching where I was going." Then Robbennolt asked her subjects if the pedestrian in the hypothetical situation should settle. With no apology, the respondents were split almost 50-50. With a full apology, the number of respondents who said that settlement was appropriate rose to 73 percent, or almost three-quarters. Surprisingly, the partial apology yielded the worst results; only 35 percent of respondents said that they would settle in that scenario.

These numbers are important because the partial apology that seems to aggravate the rancor of injured parties has become de rigeur. Attempting an apology for BP's horrific Gulf Coast oil spill, CEO Tony Hayward said "I am very, very sorry that this accident occurred, very sorry. . . . And I do believe that it's right to investigate it fully and draw the right conclusions." In the words of the Times this apology roughly translates to "I am sorry it happened, sure, but I am not saying that it was anything we could have prevented. Not quite a comforting statement. Perhaps a sincere apology is what the world most needs from BP and its lawyers these days.

Building a Better Legal Profession (BBLP) is an organization based at Stanford Law School.   BBLP is a national grassroots movement that seeks market-based workplace reforms in large private law firms. For more information, visit BBLP's Web site at www.betterlegalprofession.org.