New study says apologizing may be best defense

Sunday, August 31, 2003 | 12:00 a.m. CDT; updated 5:29 a.m. CDT, Thursday, July 3, 2008

In civil cases, a common perception among attorneys is that a defendant’s apology represents an admission of guilt. However, a new study suggests that saying you’re sorry could help you avoid litigation altogether.

The study, by Jennifer Robbennolt, an MU law professor, also found that an apology can often lead to a quicker and less painful settlement of civil disputes.

Robbennolt decided to conduct the study, “Apologies and Legal Settlement: An Empirical Examination,” to determine what role an apology might play in determining a defendant’s responsibility.

Robbennolt asked participants, age 21 to 70, to assume the role of an injured person in an accident between a pedestrian and a bicyclist. Participants were given information about the injuries, the other party’s actions and each party’s responsibility in the accident. They were then asked to evaluate a settlement offer.

Robbenolt found that 73 percent of participants accepted the settlement offer when a full apology was given, while only 52 percent accepted when there was no apology.

Robbennolt discovered that some states have statutes that prohibit apologies from being used as evidence at trial.

“Admitting fault has some dangers,” she said. “On the other hand, the study suggests that the plaintiff may be more willing to settle out of court. Whether an apology will be successful depends on the facts of the case and the nature of the apology offered.”

Indeed, Robbennolt found that a “partial apology,” which she described as an expression of remorse without admitting responsibility, confuses plaintiffs and is less likely to lead to a settlement than when no apology at all is offered. Only 35 percent of the study’s participants accepted a settlement following a partial apology.

Scott Wilson, a Columbia personal-injury attorney, said that a partial apology might offend the victim.

“A partial apology may be seen as a slap in the face to some injury victims, particularly by those who are seriously hurt or by the family of a wrongful death victim,” he said.

Local lawyer Matt Murphy said an apology often helps to hasten the settlement process. While the judicial system allows for damages, he explained, an apology is usually one of the most important things the plaintiff wants.

“It has been my experience that many of my clients are looking for an apology when they come to see me,” Murphy said.

However, he acknowledges that an apology can sometimes seem to send the wrong message.

“An apology is not necessarily an admission of fault,” Murphy said. “However it can be perceived that way, and that’s why apologies are not always allowed for later use,” he said.

While an apology will commonly bring about a quicker settlement, defendants and their attorneys need to consider all the facts of the case before deciding to offer one — including whether it will be used against them at trial, Robbennolt said.

“In order to encourage people to apologize,their apologies would not be used as evidence,” she said.

Robennault’s study is scheduled to be published in the Michigan Law Review.

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