Insurance attorneys rarely see an insurance company apologize. What might happen if they did?
In a society that highly values a genuine apology, it is shocking that most in-house counsel and most trial lawyers never even consider whether an apology might be appropriate to resolve a claim or lawsuit. We teach our children to apologize at a very young age. As adults, we are well-versed in giving and receiving apologies with our spouses, coworkers, friends, and families. It seems one week cannot pass without a high-profile celebrity, sports figure, or politician issuing a public apology for some transgression. It seems, however, that the concept of even considering an apology rarely enters the thought process of claim professionals and trial lawyers when evaluating strategic options for dealing with the claims and lawsuits that cross their desks. The absence of any academic discussions within the field of insurance is certainly not because of the lack of psychological and legal work regarding the science of apology. Apology research is as old as the study of rhetoric and it has gained widespread popularity in other disciplines in the last two decades.
Regardless of the relationship or magnitude of the transgression, the first step towards evaluating whether an apology is owed is always self-assessment. As for apologies within a personal relationship, for some people this seems to be very easy and for others very hard. In businesses, it seems to be exceptionally hard.Initially, the group-think of some organizations seems to create a presumption of righteous perfection. It’s exceptionally rare for group assessment to conclude that some kind of wrongdoing occurred and that an apology may be owed. While among some individuals this eemingly arrogant group-think is the result of pride, the greater driving force seems to be fear. Most business leaders fear the implications of an apology. Fundamentally, however, those who both lead companies and the trial bar must be challenged to have a more candid, transparent, and accurate assessment of the shortcomings of any organization, its claim handling, and its litigation decision making. An organization can’t accurately contemplate whether an apology is owed unless it can accurately assess whether something went wrong for which an apology might be owed. As simplistic as this sounds, it is mind boggling how hard it is for many business organizations to make an accurate self-assessment. Needless to say, far more work is needed in our industry to accurately assess when and how to apologize.
In the business context, most leaders of an organization are unwilling to apologize for anything because of the fear that doing so will constitute an admission of civil liability or criminal guilt. Research has shown that fear is the greatest impediment to an individual or organization ever being willing to issue an apology.
This corporate culture of fear in the context of an apology is frequently driven by in-house counsel or outside legal advice, which routinely discourage or even forbid corporate apologies in any context. It is difficult to assess the frequency of corporate apologies in the context of liability claims or lawsuits because no comprehensive research has been done to date. Numerous individual examples can be found of instances of apologies being made to resolve claims or lawsuits, although these appear to be the exception and not the rule. Unfortunately, most apologies seem to involve public statements of regret with the primary purpose being public relations and consumer confidence. The actual instances of direct apologies to individuals or groups of individuals who have been wronged through corporate claims or litigation seem far more rare. Any analysis of the issue quickly devolves into the inherent conflict between societal pressure to apologize for wrongs and realistic fears of legal exposure for any expressions which may imply culpability. Societal norms promote apologies, but legal fears discourage them.
To combat this inherent conflict, many states have now passed “apology statutes” intended to shield and safeguard certain communications of sympathy without creating legal exposure or legal liability for doing so. A growing number of states have sought to encourage apologies by explicitly precluding their admissibility as evidence in a civil lawsuit. The current wave of apology legislation, which has already resulted in the passage of apology statutes in 37 states as well as in Canada and Australia, appears to have originated from the first such statute passed in Massachusetts in 1986. Over the past three decades, dozens of state “apology laws” were drafted to encourage apologies by expressly precluding their admissibility to prove liability in court. Their motivation is
clearly psychological and intended to encourage those who injure others to feel more freedom to apologize to those they hurt.
Most of the state apology laws do not go far enough to preclude the admissibility of apologies. Most preserve the admissibility of apologies that expressly admit fault in contrast to those that simply express remorse for circumstances. Most explicitly protect only expressions of regret about what happened, emotional feelings of empathy, and similar expressions that do not directly implicate legal culpability. A handful of states, however, do protect all aspects of apologies by rendering legally inadmissible either
partial or full apologies.
The above is partly taken from a fine article written by Christopher W. Martin for the State Bar of Texas.
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