Oregon State Bar Bulletin — DECEMBER 2012







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You See It Your Way, I'll See It Mine


Dear Oregon National Guard Soldiers:

We didn’t warn you that you would be exposed to toxic chemical compounds when you provided security for our employees in southern Iraq in 2003. We didn’t injure you knowingly, but we understand that you have suffered as a result of this exposure. We apologize.

Sincerely, KBR Inc.

Could apologies — like this fictitious one in 12 Oregon National Guard members’ lawsuit against a defense contractor that resulted in an $85 million plaintiffs’ verdict in Portland in November — really help to keep disputes out of court?

Unlikely, say the chair of the Oregon State Bar’s Alternative Dispute Resolution Section, Litigation Section board members and a member of the Oregon Trial Lawyers Association.

“Apology is more likely to come up in informal mediation,” says Helle Rode of Portland, the Alternative Dispute Resolution (ADR) section’s chair. “When you’re in litigation, you’re usually way beyond the apology stage because they’re angry at that point, although sometimes they’ll say, ‘All I wanted was an apology.’ ”

But if want we insight into why our errant clients may be reluctant to make them, a Portland State University Department of Communication instructor who has analyzed them can help.

And a professor of law and psychology at the University of Illinois College of Law who has empirically studied apologies believes that those clients will make them, and thereby settle their legal matters — with less time and expense — if we will just get out of their way.

Not in Our Dictionary

“The term ‘apology,’ ” the legal research website vLex notes, is not to be found in Black’s Law Dictionary.”

Putting aside whether that constitutes an editorial comment, we turn to the Illinois law professor, Jennifer Robbennolt, for a definition.

An apology, she says, is a statement, offered by a wrongdoer, which acknowledges the legitimacy of the “rule” violated, admits fault and responsibility for its violation and expresses “genuine” regret and remorse for the harm done.

That doesn’t sound that hard to make.

“When the offense is such that it raises the possible involvement of the legal system, however,” Robbennolt said in a 2008 Harvard Negotiation Law Review article, “defendants, defense counsel, and insurance companies have traditionally worried that apologizing will only make things worse for the defendant; specifically, that any apology will be viewed as an admission leading to more certain legal liability. Consequently, many defendants avoid apologizing and are so counseled by their attorneys and insurers.”

That concern, she wrote, “…stems largely from the potential use of an apology as an admission of responsibility.” ( E.g ., under FRE 801(2) and OEC 801(4)(b), a party’s own statement, offered against that party, is not hearsay.)

But, as Robbennolt pointed out, “Other rules of evidence may prevent the admission of certain apologetic statements in some circumstances — for example, statements made in settlement discussions … and statements made in mediation are protected in most jurisdictions.” (See FRE and OEC 408.)

Portland litigator Richard A. Lane, an Oregon Trial Lawyers Association member, says that he “always thought that if you had a two-vehicle collision, and one driver said to the other, ‘I’m sorry, I will pay for the damage,’ ” that that would be covered by these rules because the apology was connected to an offer to compromise the claim.”

“They don’t specifically include the word ‘apology,’ ” he notes, “but they cover that situation. Just saying ‘I’m sorry,’ without an offer to compromise, is a closer question.”

In addition to these rules, there are federal and state statutes that provide special protections for certain groups of wrongdoers, such as medical practitioners who self-disclose adverse patient outcomes.

Despite such legal protections, however, Oregon practitioners say that the “apology movement,” which a January 2012 ABA Journal article said “has lately begun to gain real traction,” has not done so here, at least in some practice areas.

“I wonder how much apology is actually being employed,” says Lane, who has represented plaintiffs in litigation for 26 years, noting that in his practice, “It has never come up.”

Other Oregon attorneys told the Bulletin much the same thing. (See sidebar on previous page.)

The Client Says, ‘I’ll Take It,’ the Attorney Says, ‘You Won’t’

Why, then, is Robbennolt so darned enthusiastic about apologies in the legal context?

And she is enthusiastic as she discusses her work with the Bulletin .

“I just love to talk about this stuff,” says Robbennolt, a lawyer with a doctorate in social psychology who previously worked for the Study of Dispute Resolution at the University of Missouri-Columbia School of Law.

Robbennolt says that her “long-standing interest” in the subject led her to conduct multiple empirical studies involving a total of more than 1,000 “clients” and actual lawyers who were presented with various fact scenarios, then asked questions about settlement.

“In most studies, we haven’t said anything specific about a lawsuit being filed,” Robbennolt acknowledges, “but there’s some implication in that we say we’re trying to settle without going to trial.”

What Robbennolt’s learned from these studies, she says, is that clients and their attorneys view the concept of apology differently.

Generally, she says, “clients are more amenable to settlement when there’s an apology. But from a legal context, if someone says, ‘I was wrong,’ it completely changes the case.”

“Lawyers are more likely to want to drive a harder bargain when there’s an apology,” she elaborates. “They’re focused on ‘What can I prove at trial?’ and not so much on that the client feels remedied in some way by the apology.”

Robbennolt suggests that attorneys’ views of apologies may be influenced by a number of factors.

These include contingency fees (“You can’t take one-third of an apology”), their own reputations (“I don’t know of any research that has looked at that link”) or possibly seeing themselves as third-party observers. (If so, she says, “That detached perspective is probably a useful one.”)

Or, she says, “It may be that they are trained to focus on the law instead of intangible emotional things.”

Jackson County Circuit Court Judge Benjamin Bloom, a Litigation Section board member who litigated medical and professional malpractice cases before becoming a judge in 2011, agrees.

“I think that lawyer (Robbennolt) is exactly right,” he says. “As a lawyer, you’re thinking about how an apology can help or hurt your case, not in an emotional context. We’re geared not to apologize.”

Robbennolt says that further research of the issue is needed.

“What we know so far,” she concludes, “is that lawyers react differently to apologies than clients, but we don’t know why. And we don’t know how that difference gets negotiated between the attorney and the client. We know that lawyers have a big influence on clients, but we don’t know exactly how they come to understand each other, or even if they do understand each other.”

How You Say It Matters

If apologies can, in fact, be helpful in resolving legal matters, why are they so hard to make?

Portland State University Department of Communication senior instructor Gisele Tierney, who covers “reticence to speak” in her courses, says that reticence “can include so many things, and apology is one of them.”

“It’s the fear of speaking up when there is a reason to speak up,” she says, “a conscious or unconscious decision to withhold speaking.”

“There’re so many reasons for that,” she continues, “such as being embarrassed that you’re being asked to apologize. Sometimes people don’t apologize because they didn’t understand an apology was needed. But more often, it’s not accepting that apology is needed.”

Tierney says that negative feelings about apologizing may come from childhood when, she says, children receive “almost a social scolding that we will expect apologies.”

“My 4-year-old grandson, recently was told to apologize,” she illustrates, “and every non-verbal part of him was not apologizing.”

Tierney says that when she teaches college students about apology, she asks them to consider: “‘Who apologizes to whom, in what context, and to what effect?’ ”

“Then I’ll ask them the opposite question,” she says: “‘Who does not apologize to whom, in what context and to what effect?’ Every piece of that question is a prompt to look at how many situations are possible.”

Tierney, who has been teaching for more than 25 years and who has given apologies a lot of thought, divides them into categories. These include:

The “non-apology”: “Character is a big piece of the non-apology,” she says. “You can refer to it as withholding speech, or using silence inappropriately. At some level, the person is making the decision to do so, for a specific reason, [although] it may be unconscious. To avoid apologizing is to avoid losing face.”

The “dismissing- or diminishing-of-hurt apology”: “You’re saying, in effect, ‘That shouldn’t have hurt you.’ Or implying that the person doesn’t deserve an apology: that he caused his own trouble. [This category includes] the ‘Let’s all be professional here’ apology by a person who probably deserves to apologize but is making the pretense of hitting the high road. The worst version (of this type of apology) is, ‘If I’ve done something to make you feel bad, I was wrong.’ It’s a vague dismissal couched as an apology. The listener knows immediately that it doesn’t feel sincere, and it wasn’t sincere.”

The “follow-up apology”: “‘I’ve already apologized, and you’re not over it. I’m not going to apologize again.’ The person doing this apology is taking a stand, like there’s kind of a statute of limitations on apologies.”

The “forced apology”: “There’s a whole category of forced apology. The character of the person is in there, as when he either needs to apologize or someone deserves an apology but he feels like he’ll lose something if he does apologize. It could be for something as minor as running into someone at the grocery store. It’s the winner/loser mentality: that you’ve got to win at all costs, create a loser. It’s not insignificant that we use so many financial terms: ‘The cost of an apology,’ or ‘You owe someone an apology.’ They’re often used even when there is no actual financial aspect, because people experience apologizing as some sort of loss.”

Tierney says that “When people apologize but don’t experience it, it’s actually worse than no apology.”

“It’s an additional injury, really,” she says. “An insincere apology is further slamming the injury into place.”

Mike Niemeyer, the alternative dispute resolution coordinator for the Oregon Department of Justice, agrees.

Niemeyer, who has facilitated dialogues between victims or survivors of violent crime and their convicted offenders through an Oregon Department of Corrections program, says that in that context, “A premature apology may actually be harmful, because having the offender understand what he’s done may be more helpful and authentic than an apology.”

People think, “Why would the victim want to have a dialogue with the person who assaulted him?” Niemeyer says. “People ask, ‘What if the offender is a sociopath?’ But the victim’s healing and recovery doesn’t have to depend on where the offender is in his life. An apology is not necessarily where the victim wants to start.”

“In many cases,” he explains, victims want the opportunity to help their offenders understand the extent of the harm that they have done. For the survivor, recovery is about asserting control and independence, and articulating harm, unlike the wait for a sincere apology, is something the victim controls. An apology may be asked for, but in my experience that’s not often.”

The bottom line, says PSU’s Tierney, quoting the philosopher Philip Hallie, is that “ ‘a victim is the authority on cruelty.’ ”

“So when you speak an apology,” she says, “its validity is really in the eye of the person who was wronged. There’s a whole range of competent apology that does not come under anything I’ve just said, honest, direct apologies that people make to each other. There’s something wonderful in knowing you can apologize in a sincere way.”

Tierney and Robbennolt agree that the more-specific the apology is, the better the chances of it being accepted.

“There’s a specific reason we want an apology,” says Tierney, “and we expect a specific apology.”

Robbennolt says that in her studies, “we consistently find that full or responsibility-accepting apology is most-effective.”

“We see much more-mixed results with partial apologies, like ‘I’m sorry you were hurt,’ ” she says. “That’s very context dependent. You can imagine other things affecting it, like tone of voice.”

Sometimes It Works!

Robbennolt and Oregon practitioners say that apology may work best in certain kinds of matters, such as medical malpractice, domestic relations, small claims and landlord/tenant issues.

In medical malpractice, as the ABA Journal noted in its January 2012 article on apology, some medical practitioners and entities have begun acknowledging responsibility for adverse outcomes and offering reasonable settlements early on.

“There’re been a variety of case studies showing that when a specific provider changes from ‘deny and defend’ to ‘apology and offer,’ they’re paying less in settlements and defense costs,” says Robbennolt.

While “those studies often focus on the money,” she says, “at the same there’s a recognition that a lot of this positive outcome has to be do with the communication that takes place as part of the apology-and-offer process. “People want to know what happened,” she says, “and lots of doctors have the impulse to apologize but are worried about litigation and their reputations.”

Jackson County Circuit Court Judge Bloom, a former litigator, agrees.

“In litigation, an apology is seen as an admission of guilt, so you have to be careful,” he points out. “Medical professionals — doctors, hospitals — are wary of that. But sometimes it can be appropriate. In medical-procedure cases, a lot of times it’s issues of service. Apologizing — not for the outcome but for the way it was handled — can diffuse a lot of tension. I saw that in my own cases.”

“A lot of it depends on the situation,” Bloom continues. “If there’s a way to defuse the situation quickly, it can be appropriate, but it has to be sincere and not expose your client to legal risk. If the matter can be resolved, the hospital may have risk assessment send a letter: ‘We’re sorry for the outcome.’ It can have a beneficial effect: it can make other people think of the physician or other medical provider not as a big medical institution, but as human beings.”

Bloom suggests that an attorney could couch this as “ ‘This letter is for the purposes of settlement: here’s what we are willing to do.’ ”

That said, he acknowledges that he’s never sent such a letter himself.

“In the poker game of litigation,” he says of “apology and offer,” “it’s sometimes perceived as a sign of weakness. And there’s too much risk that it’s going to come back to bite you, especially because you’re not really apologizing for the outcome. It may be seen as disingenuous.”

Where Bloom says he has seen apology be very effective is in family law cases, over which he now presides.

“The biggest thing is child custody,” he says. “Taking responsibility for the breakdown of the marriage and saying that we’re going to be dealing with each other at least until our child is 18, probably for much longer. I see the best success, in raising children, where the parties are moving on and not dwelling on the issues.”

Another arena of success has been programs like Coos/Douglas Neighbor to Neighbor Mediation Services, which offers mediation as an alternative to court for small claims and residential eviction.

“By the time the parties come into the court room, a filing has happened,” says Char Luther, who manages that program and handles some of its mediations.

Luther says that first, “everyone watches a video that Judge (Paula) Bechtold made about mediation: how it is helpful and you give up no rights by trying it. Then a court-certified, trained mediator goes into a separate room with the parties. Eventually, they’ll start talking to each other, and they may end up with a resolution. Sometimes it’s an apology, sometimes a compromise, sometimes they decide it’s not worth the hassle and drop it.”

“We don’t ask people to apologize,” she says. “We don’t talk about apologies: they’re not our primary focus. But that apology piece can make a pretty big difference in what kind of settlement is reached. One landlord will often apologize instead of bouncing back at the tenants’ accusations that ‘You didn’t fix this, you didn’t fix that.’ That makes all the difference in the world.”

Luther says that when the mediation is successful, “…we sometimes have heart-warming resolutions. It’s nice when it happens, when they’ve been best friends for years, and now they’ve been clawing each others’ eyes out over $500.”

Coos County Circuit Court Judge Bechtold, who introduced mediation to this area and has been hearing the small claims and residential eviction cases not resolved in mediation for about 15 years, says that “an incredible number of cases are resolved in mediation.”

“I was speaking on mediation at a service club,” she says, “when a man who owned a carpet business stood up and told this story. He’d sued a woman in small claims court over an unpaid bill. It turned out that she was on Social Security and judgment proof, but in the mediation process she agreed to pay him $25 a month. Subsequently she recommended him to three or four other people. Talk about apologies and making people happy with each other!”

And Sometimes It Doesn’t

But even Robbennolt concedes that apologies can backfire.

In a 2010 interview with the web-based ScienceDaily , she said that whether making an apology is a good defense strategy depends on the case and that cases where fault is clear may offer the most potential but that even then, an apology could backfire.

“There’s always a chance that an apology could make things worse,” the website quoted Robbennolt as saying. One of the reasons this is such an interesting problem is because that looms so large in the background.”

As for the lawsuit that 12 Oregon National Guard members brought against defense contractor KBR Inc. — a contest that The Oregonian said some observers saw as 12 “lonely” Davids versus Goliath — we don’t know whether Goliath ever offered to apologize.

“The court ordered the parties to a mediation, which we attended,” says Portland attorney David Sugerman, who represented the guard members, along with Houston attorney Mike Doyle. “I can confirm that because it is a matter of public record. I can’t reveal what happened at mediation or speculate on what could have happened.”

But, based on the court record — three and one-half years between when the lawsuit was filed in U.S. District Court in Portland and when jurors returned a $85 million plaintiffs’ verdict, including $6.5 million in punitive damages for KBR’s “reckless and outrageous indifference to a highly unreasonable risk of harm — we’re willing to bet that our fictitious apology is just that.

 

ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.

© 2012 Janine Robben


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