- January 2012 Issue
- The Last Word: When the Last Thing You Want to Do Is the First Thing You Ought to Do
The Last Word: When the Last Thing You Want to Do Is the First Thing You Ought to Do
Posted Jan 1, 2012 5:50 AM CDT
By Brian Sullivan
It’s a case that stands out in the memory of Robert B. Fitzpatrick, an employment attorney in Washington, D.C., because of the intense emotions involved and because of the way it ended on a positive note for both parties.
A client who had worked for a local law firm for nearly 30 years was devastated by having been summarily discharged. Fitzpatrick invited three partners from the firm to his office to listen to what his client had to say and respond to her.
“I knew these folks and there was mutual respect,” he says. “I was able to say, ‘Guys, this is not a confrontational call. I think it would be useful if you came over and just let my client talk and tell her story.’ ”
They agreed and the client spoke at length with tears streaming down her cheeks. She had obviously been deeply wounded by the manner in which she was terminated. Fitzpatrick says the partners were touched by the hurt that had been visited upon his client. “They listened and they saw her weeping—not crying, just weeping uncontrollably. They got up and hugged her and said, ‘We are so, so sorry.’ ”
Within days, the entire matter was satisfactorily settled. Fitzpatrick says the fact that the encounter was entirely genuine contributed greatly to the outcome. “Nobody sat there and said, ‘OK now, this is a 408 settlement conference, so what we’re about to say to her is not discoverable or admissible, and it’s not an admission of fault. Sign here before we apologize.’ It just didn’t happen that way,” he says. “It was completely, totally sincere. And she went away no longer bitter. In terms of her emotional and physical health, that was a huge plus. It closed the chapter and she didn’t go away with a festering sore.”
Few phrases in English or any other language have as much power to turn a tense or volatile situation into one ready for resolution as a simple “I’m sorry.” That’s been the case since the advent of language itself. Yet, often it’s the last thing a party is willing to say. In the legal profession, where an expression of remorse might be considered a tacit admission of liability, hardball tactics can result in major-league paydays, but at what price? If success is measured by how much the opponent has been bloodied, some say it might be time to use a different yardstick.
The “apology movement” has lately begun to gain real traction with lawyers who have come to realize that a contentious victory is often a hollow one. They know that finding joy and satisfaction in the legal life is at least as important as whether the case was “won.”
And while there are no hard-and-fast statistics to prove it, practitioners who have seen the toll taken by refusal to make peace on a personal level know that a satisfactory result in the legal matter will be difficult to achieve. Divorcing spouses who are perpetually at war, for instance, will part ways eventually with their property divided and child custody determined, but if the underlying hurts and resentments have not been addressed, the relationship will forever be uneasy. Lawyers of all types know that hard feelings get in the way of favorable outcomes, whether it’s between opposing clients, opposing attorneys or attorneys and their clients. And increasingly they’re realizing that they need to rejigger the status quo.
Is this indicative of a sort of clarion call to civility in the practice of law? It depends on whom you ask, though nary a lawyer is likely to tell you that would be a bad thing. But the question remains as to whether an apology is considered something to be used in the furtherance of common decency in the profession or whether it can be co-opted as part of a business strategy intended to mitigate potential damages. Lawyers who’ve been there know that the answer is both.
THE EMOTIONAL FACTOR
Hurt feelings and perceived wrongs are perennial manifestations of legal conflicts, and often if a lawyer is to have any hope of bringing a matter to a fully satisfactory conclusion, one or both parties should be encouraged to take ownership of mistakes or misdeeds. Some clients want desperately to be acknowledged as victims and would forgo monetary compensation to achieve it. Recognizing this can be key to bringing some matters to a truly satisfying conclusion.
Areas of law where emotions tend to run high—such as family law—offer prime examples of circumstances in which an apology can facilitate a settlement with both sides’ feelings assuaged. Collaborative divorce lawyer and mediator Elaine T. Silver of Lake Mary, Fla., says when divorcing spouses can apologize to each other, it can be “incredibly powerful” in getting the “perceived victim” spouse to stop looking backward and start looking forward.
“For a husband and wife who are getting divorced to sit down and say, ‘We can work this out,’ a huge piece of that has to be ‘I’m sorry for how I hurt you; I forgive you for how you hurt me.’ It’s a grieving process. Until they work through that, they can’t get to ‘All right, how do we let go of the old hurts and move on in a way that’s going to be least disruptive for both of us?’ ”
Silver says that many of the thought leaders and front-runners in the profession are moving toward collaborative practice and mediation, and away from litigation because “the old model of ‘You’re the bad guy, you did me wrong, now I’m going to beat you up and make you pay’ is just not productive.”
And though she espouses the concept of apology as a tool, Silver recognizes that it isn’t always possible to make it happen. In such cases, she says, “the person who’s carrying the burden of feeling wronged can choose to let go of that, whether or not the perpetrator comes forward and apologizes.” She sums up that notion with a quote she once heard: “You have to have a certain reservoir of self-esteem to be able to forgive.”
LAWYER TO LAWYER
It’s one thing for lawyers to counsel good behavior to clients but quite another to practice it themselves. Zealous advocacy is expected and in fact required. The preamble to the ABA Model Rules of Professional Conduct dictates: “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” But problems arise when that concept is interpreted in a take-no-prisoners manner, including acrimony, collateral damage and a black eye on the profession.
Across the country, evidence exists that lawyers are taking it upon themselves to chip away at the negative public perception that has taken hold and fostered mistrust of and contempt for the legal system. Apologizing for inappropriate speech and behavior is being done in ways both macro and micro.
San Diego lawyer Heather Rosing—shareholder and CFO at Klinedinst—represents professionals, mainly lawyers and accountants, in fraud and malpractice cases. “I see what lawyers do, I know a lot of lawyers, and I think that has given me a lot of exposure to this issue,” she says. “I have seen apologies being used more and more frequently in order to maintain good relationships. Good lawyers are pretty willing to apologize to their opposing counsel. I’m certainly not afraid to do it. And when people do it to me, I respect it.”
As president of the San Diego County Bar Association in 2008, Rosing led the local legal community in what was called the Civility, Integrity and Professionalism campaign. “To the degree that you have a good relationship and open dialogue with your opposing counsel,” she says, “it’s going to decrease your client’s fees and make the case more likely to either resolve or to figure out whether you have to go to trial.”
In addition to trying to effect change on a larger scale, many lawyers are aware that contributions to the effort can start from within themselves. In a recent divorce case in which she represented the wife, Laura Mann of West Milford, N.J., tried to make it clear to the opposing lawyer that her representation was limited and would not include litigation. Therefore, she would not be signing the acknowledgment of service that is de rigueur in New Jersey. Mann did not want to be mistakenly listed as the client’s attorney of record. She instructed the other lawyer to send the form directly to the client. “I made that very clear to him. He promised me that form and a draft of the property settlement agreement soon,” she says.
Several weeks later, Mann received a letter from the other lawyer’s office that included the acknowledgment of service with her name listed as attorney of record. “I thought, ‘How dare he just disregard my instructions?’ And he didn’t even include the draft property settlement agreement. So I call him and I leave kind of a nasty message,” she says. “I was not happy and I made that very clear.”
Later that day, Mann listened to a voicemail from the lawyer. “He said, ‘Ms. Mann, I’d appreciate it if you don’t leave me cranky messages. We’ll get along much better.’ Then he explained that it was a mistake he would correct immediately. I just lost it. I started laughing so hard because he was totally, totally right. I was right too. He wasn’t consistent with my instructions; but A, not a big deal, and B, it didn’t occur to me that it was just an honest mistake.”
Mann knew she had some damage to repair, not just for the sake of the ongoing relationship with the other attorney but because the client would be better served if the relationship was mended. “So I called him and left a message. I said, ‘You’re right, I really apologize. I don’t have an excuse. I could have handled it more appropriately. I look forward to working with you amicably and productively in the interest of resolving this case.’ ”
Mann laments the coarsening that she’s observed in the practice of law. “There definitely needs to be a lot more civility,” she says. “The profession has lost a lot of its professionalism, and it’s disappointing. Hopefully it’ll recover from that.”
LAWYER TO CLIENT
Of all the situations a lawyer might encounter that would benefit from an apology, the one most fraught with peril is admitting to a client that a mistake has been made and that the case has been compromised in some way. Visions of malpractice lawsuits and state bar complaints can flash across a lawyer’s mind as he or she tries to figure out the best way to handle the miscue.
As with any delicate matter, the best advice is to tread carefully. Bruce Schafer, director of claims with the Oregon State Bar Professional Liability Fund, says coming clean is the first step. “There are disclosure responsibilities, especially when you’re still representing the client,” he says. “It’s painful for the lawyer to have to do it, but it’s the only proper way to handle some of those things.”
Schafer says an apology can have a place in such a situation, but “one of the downsides is that it can be an admission and could be used against you later in a civil case. But it’s better to be really up front about it.” He says of lawyers who find themselves in such a quandary, “Most of these people are decent people who are working hard, and an apology can really mitigate a problem with a client because most people are inclined to forgive mistakes. They may still make the claim, but it won’t have the poison in it.”
Schafer cautions lawyers against getting caught up in the feel-good aspect of apologizing. “When lawyers who have insurance want to go this route,” he says, “they need to talk to their carriers before they do it. And the reason is, you don’t want to start admitting fault and your carrier says, ‘You failed to cooperate with us and now you’re not covered.’ People who want to make an apology need to first talk with the person who’s going to be writing the check.”
Lawyer, mediator and collaborative practitioner Bruce Dorner of Londonderry, N.H., says he’s found that clients will usually react reasonably if they’re dealt with honestly. Dorner says when he’s had to disclose an error that negatively affected a case, he’s done it without delay. “The first thing I do,” he says, “is sit down with a client for a face-to-face and say, ‘Look, you hired me to make a call. I made the call, it didn’t work out, and here’s where we are. What can I do to make it right for you?’ The client 99 times out of 100 will say, ‘I accepted the risk. Don’t worry about it.’ ”
Dorner says offering an apology when it’s called for is especially important in a profession that relies so heavily on referrals and building relationships. “The worst thing a lawyer could do is try to cover up the mistake,” he says, “because that’s often where we end up with either an ethics violation or a malpractice issue. And it’s just too easy to fix things up front not to take that opportunity. Why wait for the bomb to drop? Defuse the situation and move forward.”
THE BUSINESS CASE
In a society where apologies are sometimes proffered only after intense public pressure (think Toyota, Tiger Woods and BP), their sincerity comes into question: Why is the apology being made? What’s at stake? Was it written by the offending party or by a lawyer? The same types of questions have been raised by those who see an apology in a legal setting as nothing more than an attempt to mitigate liability and minimize damages. In some cases, that’s precisely the plan.
Medical malpractice is one area of law that is especially emotionally charged because the stakes are as high as they get. When there’s an “unexpected outcome” after a surgery or other medical procedure, patients or family members demand answers. They also tend to demand substantial compensation, and juries often give it to them. Because of the high numbers involved, including the costs of insurance, some hospitals have instituted programs whereby the unexpected outcomes are addressed in a straightforward manner. The goal? To mitigate liability and minimize damages.
Though the standard response to med-mal claims has long been deny and defend, some medical facilities such as the University of Michigan Health System and the Veterans Affairs hospital in Lexington, Ky., have in place policies whereby medical errors are acknowledged, personal apologies are given and realistic offers of settlement are made. Statistics have shown remarkable decreases in numbers of lawsuits filed and legal fees incurred. And most states have passed statutes—sometimes referred to as “apology shields”—that make medical apologies inadmissible as evidence in court.
A study published last August in the Journal of Risk and Uncertainty examined 225,000 medical-malpractice payments from 1991 to 2009 in states both with and without apology shields. It found that “apology laws could expedite the resolution process” and that such laws “result in the greatest reduction in average payment size and settlement time in cases involving severe patient outcomes.”
Critics of the statutory protections argue that they only encourage unscrupulous individuals to game the system by offering insincere apologies in the hopes of walking away from a problem relatively unscathed. Civil trial lawyer Steve Lombardi of West Des Moines, Iowa, author of the Lombardi Law Firm Blog, says the apology shield contributes to “a decaying of society’s moral fabric and common sense. It’s the end justifies the means, no matter what the cost. And in this case, the cost is credibility at the courthouse.”
Lombardi recalls a case “where the patient was unsatisfied with the surgical result, and the physician called the patient up later and said, ‘Could you come here? I need to talk to you.’ And it was obvious from the conversation that the legal department had told the doctor, ‘Just go in there and apologize, even though you don’t think you did anything wrong.’ And that’s the way the apology came forth to the patient, and the patient was angered by it and then came to see me.
“To try and force an apology out of somebody,” he adds, “or for somebody to feign an apology, flies in the face of not just reason, but morality.”
And it’s not just med-mal cases that bring out the ersatz hand-wringing. Practitioners in any field of law can encounter false contrition. But sincerity, being subjective, is not something that any statute can guarantee, and therein lies the conundrum.
“How can you legislate that it has to be a sincere apology?” asks D.C. employment lawyer Fitzpatrick. “I don’t know how you avoid that problem. Maybe in one sense it’s avoided because most of us know what’s sincere and what isn’t. But there are some people out there who are pretty good actors.”
THE LAW SCHOOL EXPERIENCE
So while it’s all well and good for the legal profession to gravitate toward this concept of apology as a multifaceted method of advancing civility and increasing the likelihood of mutually satisfactory outcomes to legal disputes, one has to wonder why this is, more often than not, on-the-job training. Why aren’t law students indoctrinated into this mindset? Some law schools have asked the same question and answered it by incorporating the concept of apology into their curricula. One of the forerunners of this effort is law professor Jonathan R. Cohen of the University of Florida.
Cohen teaches courses related to dispute resolution and has taught negotiation courses and a seminar on reconciliation, where he often raised the subject of apology and what role it might have in facilitating a legal settlement. “We’ll do role-play exercises where students might incorporate an apology,” he says, “we’ll study cases where one has been made; and we’ll also look at cases where no apology has been made, but when you study the case carefully it’s the kind of case that screams out for one.”
In trying to get students to focus on serving client interests, for instance, Cohen stresses how a sincere apology can impact the relational dynamic between the parties. “There are cases where an injury has taken place, but the failure to take responsibility for it really compounds the antagonism,” he says. “So we talk about the fact that if the parties want to have a future relationship, an apology can be a very important part of that. And we look at that in the civil setting and also in the criminal area.”
Aside from stressing the business advantages to smoothing out relationships, Cohen also tries to get students to consider adopting a sort of morality-based approach to their future work. “I talk with students about having a discussion with clients about what their response should be if they’ve done harm to someone else,” Cohen says. “Not that the lawyer should impose his or her moral judgments on the client, but the client may want to make some real moral choices on how they handle situations.”
Cohen says that he’s spoken with colleagues who also incorporate apology into their course material, and that he senses there are many more such classes now than there used to be. He says he and his colleagues try to make students aware that “an apology can be something in a tool kit, which in some ways may be a very helpful, appropriate and effective measure.”
While the value of a simple “I’m sorry” has long been recognized as an antidote to ill will, it’s worth noting that it’s being increasingly utilized in legal settings by practitioners of all sorts who have a common interest in being satisfied with their work and with themselves as people. They know that despite their own efforts to cast the profession in a positive light, public perception tends to remain stubbornly negative. But wars are won battle by battle, and more lawyers say they are determined to run their practices with more than the billable hour as a focus.
One of the ways they are doing that is by not being afraid to apologize for an error and encouraging clients to adopt that way of thinking as well.
“Your profession might be such an important part of your identity that it goes to the heart of the type of person you are,” says Schafer of the Oregon State Bar Professional Liability Fund. “And when you’re imperfect, that really affects how you see yourself as a person. So it’s helpful emotionally for people to be able to unburden themselves by apologizing,” he says. “In the appropriate setting it helps everybody.”