Keeva on Life and Practice

Law and Sympathy


Five years ago, I wrote an article for this magazine that continues to be a source of great pride for me.

Why? Because “Does Law Mean Never Having to Say You’re Sor­ry?” actually made a difference in a number of people’s lives. Not only did it help to start numerous conversations about the role of apology in the law, but it also inspired a California judge to push through legislation making apologetic ex­pressions of sympathy—though not admissions of fault—inad­missible as evidence of liability.

Score one for the power of natural human expression.

I return now to this topic because the article struck a chord that continues to resonate today. Interest in apology appears to be at an all-time high.

MEA CULPA AND MED-MAL

While I’ve moved on to other topics, the law of apology has continued to evolve, even if some of the more significant developments have occurred below most lawyers’ radar screens (and too often that of the national news media). One startling bit of news that I only recently became aware of is the fact that Colorado revised its evidence code last year to give protection in medical malpractice actions not only to expressions of sorrow or empathy, but even to acknowledgments of fault.

Now, a health care provider in, say, Colorado Springs, can tell a patient, without fear of liability, “I am sorry that I hurt you.”

It will be fascinating to see whether such laws will decrease the number of medical malpractice cases. In any event, we should soon have ample evidence to either sup­port or reject a notion that we hear all the time: A significant number of plaintiffs sue doctors specifically because no apologetic acknowledgment was forthcoming.

Oregon has a law similar to Colorado’s, and bills pending in both Michigan and Hawaii would provide the kind of protection from liability that Colorado offers, though it is not limited to med-mal cases.

So much for the reflexive, emotionally stifling deny-and-defend response, which was de rigueur for defendants for so long. In fact, the stage will more naturally be set for candid conversations addressing the prevention of future problems.

Jonathan Cohen, a law professor at the University of Florida and an expert on apology and the law, is careful to note that an apology, even one that is accepted, does not obviate the need for compensating the plaintiff. “What it does mean,” he says, “is that determining compensation is likely to be far less adversarial.”

This is a crucial point. When I wrote “Does Law Mean Never Having to Say You’re Sorry?” I began by calling Chicago’s best-known plaintiffs lawyer, Philip Corboy (he has a downtown street honorarily named for him), to see what he thought about the value of apologies for his cli­ents. His response was, and to a large extent still is, an eloquent statement of mainstream thinking on the subject.

“We’re in the redress business, the business of seeking justice under the justice system,” he pointed out. “The role of the tort system is compensation, not apology.”

Larry E. Riley, a Missoula, Mont., lawyer who represents phy­sicians in medical mal­practice suits, takes exception to that characterization. “I think that lawyers, when we’re at our best, are problem-solvers and healers,” he says.

“Mon­ey has its place in the compensation system, but it is not the be-all and end-all. There are oftentimes other things that must take place, such as being heard, finding out that someone truly does care and, in the appropriate case, a sincere and heartfelt apology.” Riley has given testimony to the Montana legisla­ture, which is working on a new law that would make such apologies eas­ier to deliver.

A WINNING COMBINATION

Something that Corboy and probably many other lawyers may not often consider is the combined value of compensation and an apology.

It is hardly uncommon for lawyers to see things in zero-sum/win-lose terms. Yet, as Cohen says, the question is not whether an apology will prevent all legal recourse, but “how it will influence the character of that recourse—whether compensation will be determined by a relatively cooperative and speedy settlement pro­cess or through more lengthy, costly and often unpredictable litigation.”

One factor that may be driving the proliferation of apology laws these days is something quite basic:

They are cheap. “In an age where economic forces so often drive health policy choices, how often do we encounter a potential reform with such little cost?” Cohen asks. “What does it cost to enact a law that excludes a health care provider’s apology from admissibility into evidence?” Virtu­ally nothing, yet the reform may profound­ly change how providers re­­spond to and attempt to prevent medical errors.

A good deal of evidence suggests that apologies can reduce the value of lawsuits. Does that mean that plaintiffs lawyers will tend to avoid them? That depends on the plaintiffs lawyer.

As it happens, the lawyer I know who has taken the concepts I wrote about five years ago and run farthest with them is Rick Halpert, a Kalama­zoo, Mich., personal injury lawyer who does not sue doctors.

In recent years, he has taken to regularly asking his clients whether an apology—assuming he can get it from the other side—would help them to move through the healing process.

They usually say yes.

And the defendant almost always agrees to make the apology.

It can happen in a variety of ways, depending on how far the case has progressed. The most common kinds of apology meetings Halpert uses are these:

• An apology for its own sake. This usually follows settlement or is used when it is clear that a lawsuit won’t solve anything. It tends to be useful, Halpert points out, because it gives clients a chance to vent their anger at the person who caused their pain. They are able to say, “This is what you did to me,” and the person at fault can say, “I am sorry” and usually be forgiven.

• An apology that, in addition, facilitates settlement. Sometimes the client is so angry that he or she is unwilling to discuss settlement absent such a meeting. Also, because people who feel wronged often tend to demonize the other side, the injured per­son gets an opportunity to see defendants as real, flesh-and-blood people, and to see that in many cases they, too, have suffered. Once this is accomplished, settlement usually follows.

• An apology as one of the terms and conditions of the settlement. Some­times this gets quite complicated, as when there are criminal charges pending against the defendant. Halpert recalls a case in which he and his law partner, Bonnie Sawusch, worked out an apology as a condition of both the plea bargain and settlement discussions in meetings with the chief county pros­ecutor, an assistant prose­cutor, a criminal defense lawyer and an insurance company representative.

The case involved an apology for the death of a 3-year-old child. The father forgave the wrongdoer and said, “I hope God will give our families the strength to heal together.”


Steven Keeva is an assistant managing editor for the ABA Journal. His e-mail address is skeeva@staff.abanet.org.


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