Thursday, April 14, 2011

The Power of an Apology in the Legal World

I can’t believe that it’s been over three months since I last contributed to my own blog! I’m sorry, readers! This semester’s law school workload has increased dramatically; In return, my blogging time has decreased substantially. In addition to last semester’s classes (minus Torts), Criminal Law and Constitutional Law have been added to my heavy class load – which brings my class schedule to a hefty 6 courses. In better news, a summer position has been secured on my behalf, and I had a blast choosing classes for next semester. Four more weeks and I’ll officially be done with my first year of law school. Yeah!

So, besides the hundreds of cases that I’ve had to read for classes, I’ve been doing some personal, on-the-side research of my own. It’s common knowledge that the American way of life is based on the belief that everyone should have their day in court. In other words, an individual has the right to have his/her case heard and tried in front of a judge. This is a wonderful system that ensures equality and due process across the board. I have to admit though, that sometimes I’ll be reading, briefing, or reviewing a case for school/work/my own research, and I start to wonder why on earth such a case was even civilly tried in the first place. While reading through the facts, the judge’s concurrences or dissents, I think about what a waste of resources this case was not only for the plaintiff, but for the court as well. I have come to find out, though, that one very powerful thing can stop a person from starting a civil law suit in the first place: a genuine apology.

In a past blog post I wrote, “Slander, Say What?!” I described a hypothetical situation about slander. The victim in this situation never received an apology from the slanderer. Instead of putting an end to his actions and to admitting his wrongdoings, he chose to continue the slander and allow his family and friends to chime in. His friends and family never apologized either. This alone would motivate her to start litigation against everyone involved...not only to secure her reputation, but to also have an injunction ordered for the slanderer(s) to discontinue their actions immediately and to collect damages. What’s in store for both the victim and the slanderers? Read more below!

Ah, the power of an apology. In the legal world, this is a concept that doesn’t get much attention. All in all, in western society we seem to have developed a general unapologetic attitude. Alternatively, we have become very proficient in the non-apology apology. People choose to engage in contentious litigation, often being ordered to pay thousands or millions of dollars in court awards and legal fees, because they are unwilling to offer a sincere and genuine apology. Those three words—“I am sorry”—are powerful words that can often save people a great deal of time, money, and hurt in the legal world.

The potential consequences of an unwillingness to apologize can be severe. Disputes often become concrete legacy…so much that apologies and forgiveness are not even considered. A perfect example is provided by family disputes. Conflict between family members can create schisms and long-standing resentment, resulting in family relationships breaking down and, eventually, peripheral family members taking sides. A more familiar example is the litigated case where an initial unwillingness to apologize leads to a long, costly, and contentious court battle; both parties become embittered, clearly drawing their respective lines in the sand, and firmly committing to their positions and principles. Apologies offer validation and people desire validation. Clearly, the failure to apologize can be a central factor in escalating conflict. Despite the serious consequences of not apologizing, we seem to have even greater fears about the potential consequences of doing so, including fear of the other person’s negative reaction toward us, fear of losing power or authority by admitting wrongdoing, and fear that such an admission indicates we are weak, incompetent, or bad. Few things are more powerful than having the common sense, wisdom, and strength to admit when you’ve made a mistake and to set things right.

Empirical research began exploring the influence of apologies on litigant decision-making. Research reveals that apologies generally influence claimants’ perceptions, judgments, and decisions in ways that are likely to make settlement more likely. Apologies may alter perceptions of the dispute and the disputants, decrease negative emotions, improve expectations about the future conduct and relationship of the parties, change negotiation aspirations and fairness judgments, and increase willingness to accept an offer of settlement. In fact, in an article featuring an interview with several plaintiffs in medical malpractice cases, 30% of the plaintiffs stated that they never would have sued had they received an apology. Most likely this is because an apology subtracts insult from the injury, and offered at the right time, can prevent minor conflicts from escalating into major lawsuits.

According to Dr. Aaron Lazare, a sincere, genuine and successful apology follows a four-part apology process: (1) acknowledgement of the offense; (2) communicating remorse and the related attitudes of forbearance, sincerity, and honesty; (3) explanations; and (4) reparations. Acknowledgement can be somewhat challenging because it includes: (a) correctly identifying the party or the parties responsible for the grievance, as well as the party or parties to whom the apology is owed; (b) acknowledging the offending behaviors in adequate detail; (c) recognizing the impact that these behaviors had on the victim(s); and (d) confirming that the grievance was a violation of the social or moral contract between the parties. Succinctly, a full apology is “a statement offered by a wrongdoer that expresses acknowledgement of the legitimacy of the violated rule, admission of fault and responsibility for its violation, and the expression of genuine regret and remorse for harm done.”

One would think that a simple apology outweighs the sad reality that the slanderers have to now pay thousands of dollars of damages. This is exactly where the problem exists. Civil rights defendants are notoriously reluctant to offer apologies, and in contrast to some other countries, the U.S. civil legal system does not provide a mechanism to force recalcitrant defendants to accept responsibility by apologizing.. As a result, many plaintiffs are disillusioned by the process of litigation, irrespective of whether they receive significant monetary or injunctive relief. These plaintiffs aren't disillusioned because they have unreasonable expectations of the legal process; they are disappointed because they haven't been fully compensated.

Apologies are some of the most profound interchanges between people because they touch us at what can be our most vulnerable moments. The party who makes the apology can be relieved of his or her guilt and shame in this act of sacrifice, and the person receiving the apology enjoys the restoration of their dignity and can envision the beginnings of forgiveness. Therefore, it is important not to underestimate the power of apology and forgiveness in conflict because something so seemingly small may actually provide the solution or at least mitigate damages.

4 comments:

  1. I see you! Hope you're paying attention in Contracts, Bakes. Good job on your post. I'm amazed that you even have time to write.

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  2. Josh, I hope *you're* paying attention, because I'm sure that commenting on my blog wasn't part of the assignment on our syllabus....;)

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  3. I love this post. It lays out, in a legal sense, that which is inherent to a life of seeking to love one another and live in a way which is not self-serving--in other words, to live as a Christian. I love seeing that which is evident to Christianity reflected thoroughly and intelligently in other spheres--in this case, the legal sphere. Good job my dear friend!!

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  4. Great post! Your love is shown through your words. I couldn't agree more with Donna.

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