It must be the season for corporate apologies. Twitter is sorry that it allowed itself to be a home for hate groups for so many years. Facebook is sorry that it was a gateway to companies like Cambridge Analytica and a host for Russian trolls. Wells Fargo is sorry it loaded its customers with unwanted fees and accounts. Uber is sorry it forced sexual assault victims into arbitration. And Starbucks is sorry for the racism of some of its employees. Those apologies are all aimed at the court of public opinion, but the “sorry” crops up frequently in the trial court as well. When companies find themselves a defendant in a civil suit, they will sometimes come to the conclusion that they’ll need to rely on that pinnacle of the passive voice: “Mistakes were made.”
But it’s not a simple decision, and it’s not a simple message. Delivering an apology of any form is tricky and requires planning, not an off-the-cuff comment. It should neither be truncated and curt, nor more effusive than it needs to be. The scope and the direction of any acceptance of responsibility needs to be thought out carefully, and ideally tested in pretrial research like a mock trial or a focus group. The specific decision of whether an admission helps more than it hurts will depend on your specific case. But in general, I think there is a checklist of questions that you should be able to answer before you wade into the apology.
Is It Empathy or Responsibility?
As I’ve noted before, it seems like an accident of language that we use the same word, “sorry,” after we’ve stepped on someone’s foot, and after we hear that someone has had a death in the family. The first situation is an example of taking responsibility, while the second is an example of expressing empathy. If the “Sorry” is unexplained, then there can be confusion about which you mean. Both might matter in litigation, so be clear in drawing the distinction between, “We are sad that this happened“ and “We accept responsibility for this happening.”
Are You Accepting Liability or Something Short of That?
Assuming that you are accepting some measure of responsibility, and not just expressing sadness over a bad outcome, the next question is: “How much?” At one extreme, the defendant concedes liability in the hope of enticing the jury to take a harder look at causation or a more favorable look at damages. At the other end of the spectrum, however, you have the concession that you made some mistakes or could have done some things better, while still emphasizing that these actions or omissions fall short of negligence, breach, or any other form of liability:
We didn’t do everything perfectly, but we are not liable in this case.
Was the Mistake in Retrospect or Contemporaneous?
Sometimes the “mistake” you are acknowledging is only a mistake when you look at it with the benefit of hindsight. Based on what you knew or believed at the time, it was reasonable. In medical liability cases, the mythical device of the “retrospectoscope” is invoked to explain the difference:
Today, armed with the full knowledge of what unfolded over the next two weeks, we can say with confidence, ‘The diagnosis was incorrect.’ But rewinding to the time the diagnosis was made, and shedding everything but the knowledge we had at the time, the diagnosis was reasonable, and probably the only diagnosis that could have been made. Physicians have all kinds of sophisticated tools, but they don’t have a tool to tell them how things will look down the road when you add in hindsight: The ‘retrospectoscope’ doesn’t exist.
What Are You Not Apologizing For?
One reason lawyers can be justifiably wary of a concession is that it conveys weakness. Admitting to having done something wrong can, of course, pave the way for jurors to think that you did more things wrong. That’s a reason to only concede conclusions jurors are likely to arrive at anyway. But it is also a reason to show some strength in order to counteract the potential weakness:
As we’ve said, we are sorry our recordkeeping was not better, and it is unfortunate that our switch from paper to electronic records means you cannot see some of the important employee evaluations. But we are not sorry we took the time, over and over again, to meet with the plaintiff and give her verbal feedback — meetings that she remembers and acknowledges. We don’t apologize for that, because we invest in our employees and believe in giving them every chance.
What’s the New Target?
Here’s a pretty reliable fact about a jury’s decision-making: They’re going to focus where you focus. So if you spend a ton of time on an issue during trial, they’re going to see it as important and spend a ton of time there during deliberation. And that spotlight might be unfortunate if time spent on that issue tends to hurt you. That’s often the best reason for an admission: Better to have them acknowledge an issue and move on to other issues. But what other issues? Part of the strategy in apologizing should be to surprise jurors, harvest some additional credibility, and then use that credibility to direct the focus where you have a better chance of improving your case.
If You Want a Full Apology, Have You Touched All Four Bases?
Finally, as we’ve written before, when you are apologizing, make sure it is a full apology and not a half measure. A complete apology includes the ‘Four R’s:’
Regret: “I’m sorry I broke your window…” Responsibility: “It was my fault.” Repair: “I will pay for that window.” And Reform: “And in the future, I won’t practice my pitching near your house.”
So, for an energy defendant, the full apology might sound something like this: