The Power of Apology

by Michael T. Hertz
Lang, Richert & Patch

A few months back, Playboy magazine ran a cover, showing Jessica Alba. Alba, miffed at the unauthorized use of her photo, threatened to sue. In response, Hugh Hefner, Playboy’s founder, wrote a personal letter of apology, and the magazine made donations to two charities which Alba supports. Result? Alba decided to drop her claims against the magazine.

What a wonderful result for everyone. Ms. Alba got her grievance recognized, some deserving charities got money, and we were all spared the cost and silliness of yet another unnecessary lawsuit. We bet you didn’t know that Mr. Hefner’s apology took some courage. If Ms. Alba had decided to sue, she would have been free to argue that the apology was an admission of fault. So a gracious gesture would have been turned into a lawyer’s bludgeon. (As attorneys, we would take a certain amount of umbrage at such a tactic, even though it’s perfectly legal).

Apology laws have existed only since the late 1980s. They have been implemented in more than 20 US states as well as in Australia. There is growing evidence that apology laws lead to a reduction in both the number of lawsuits and the time required to settle lawsuits in which apologies are made. In contexts outside formal apology legislation, such as the pilot project in Illinois – the ‘Sorry Works’ program — results have been impressive, demonstrating that providing a safe harbor for apologizing is a pragmatic approach to dispute resolution.

The BC Apology Act (which went into effect on May 18, 2006) takes the more aggressive form of apology legislation, as seen in jurisdictions such as Arizona, Colorado, Oregon and New South Wales, where not only expressions of sympathy and benevolence are protected but also fault-admitting apologies. This distinction between apologies that admit fault and those that do not is the major difference between the various apology laws. To date, only British Columbia and jurisdictions such as those mentioned above have gone so far as to protect apologies that admit fault.

The BC Statute is short and to the point:

In this Act: “apology” means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate; “court” includes a tribunal, an arbitrator and any other person who is acting in a judicial or quasi-judicial capacity.includes a tribunal, an arbitrator and any other person who is acting in a judicial or quasi-judicial capacity.Effect of apology on liability. Effect of apology on liability

Definitions:

(1) An apology made by or on behalf of a person in connection with any matter

(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter,

(b) does not constitute a confirmation of a cause of action in relation to that matter for the purposes of section 5 of the Limitation Act,

(c) does not, despite any wording to the contrary in any contract of insurance and despite any other enactment, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available, to the person in connection with that matter, and

(d) must not be taken into account in any determination of fault or liability in connection with that matter.

(2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.

Well, okay — not all that short. But you get the idea. If you get into a fender bender, and you say, “Gee, I’m sorry. Can we talk about it?” you won’t make things worse for yourself. Here’s one of best ideas in a long time which costs nothing, promotes civility, and just may reduce the rising incidence and cost of litigation.

California (unfortunately) has nothing so broad or encouraging. Given the recurrent drumbeat about frivolous and unneeded litigation, you may want to drop a note to your legislator.