Monday, December 10, 2018

Attorney Clifton Smoot discussed the legal implications of a defendant apologizing to a plaintiff in the January issue of Plaintiff Magazine.

If a defendant apology occurs before trial, Smoot contends that it is necessary to look at the content and context of the apology to see if it is genuine.  If the defendant apologizes early in a case, it may lead to settlement and gives emotional closure.  A sincere apology needs to remedy financial and emotional sufferings, and accepts responsibility to accept fault, fix the damages, and ensure the situation will not occur again.

When a plaintiff is not ready to accept an apology, the defendant’s apology may become strategy.  The factual admissions in an apology are useful to guide a plaintiff’s discovery. As a case advances to trial, it may be too late to apologize.

At trial, a defendant’s apology is not for the plaintiff, but a tactic to look remorseful to a jury. A defendant’s apology is not real when it is does not express sympathy for a plaintiff’s injury.  A statement that acknowledges a plaintiff’s suffering, but deflects attention from the defendant’s role in causing the injuries is a regret, not a liability admission.  The jury is not to misinterpret “sorry” as meaning “sorry for making a mistake.”

A sincere apology has standing, which means the person offering an apology has the right to offer it, and the person receiving the apology has the right to receive it.  The person who apologizes to a plaintiff should usually be the person legally responsible for compensating the plaintiff.  The actual defendant, not the defendant’s attorney, has standing to apologize to a plaintiff.  The attorney is someone hired to clean up someone else’s mistakes.  An attorney’s apology is an improper personal opinion. 

The plaintiff needs to explain why the defense’s apology at trial is not sincere so the jury is not convinced the apology is real, and puts the defendant at a higher ground.  The plaintiff must dissect the apology to show the jury that the apology does not express regret for wrongdoing such as discomfort for causing harm to a plaintiff, or acknowledge the standard of care. 

An apology that does not acknowledge a shared social relationship or moral norm is not credible.  Discovery on a defendant’s position on standards such as safety or remedial measures can be used to remind the jury how an apology at trial contradicts with the defendant’s respect for standards. 

Read more about the elements of a sincere apology at trial here.