Date of this Version
Court Review, Volume 45, Issue 3, 90-97
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.
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. 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.
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.