Should My Client Say “I’m Sorry”?

As a corporate defendant, does it help or hurt to apologize for past conduct?  Does it show weakness?  Fault?  Honesty?  Sincerity?

Well, it all depends on the case.  Just take a look at mock jurors’ very different reactions to two different defendants saying, “We’re sorry.”

Juror A:  “They have done nothing to address the problems that led to this.  Saying they were sorry and then doing nothing about it makes them more guilty.  It was almost condescending to apologize like that and think that was enough to make up for what they did.”

Juror B:  “They had to admit that.  The one thing that people don’t like is to get lied to.  It’s very American to recognize a mistake and to apologize for that mistake and try your best to make it right and do everything in your power to make it right.  It’s a principle I go by and big corporations usually go by.  It’s honesty and integrity.  I think they are trying their best to make it right.  They learned and changed things.”

In each of these two cases, the defendant had apologized for the situation and acknowledged that mistakes were made.  How could contrition cause such drastically different juror reactions?  The answer lies in how the company responded to its missteps.

Scenario 1:  “We’re Sorry for Our Mistake (But We Didn’t Implement Solutions).”

In the first case, where our mock juror was angry with the defendant for its apology, the company had never addressed its internal policies and issues that caused the problem to begin with.  Sure, everyone might be upset that this terrible situation happened, but jurors wanted to know what was done to prevent such an event from happening again.  So, when the company expressed sympathy for the injured family and regret that the incident occurred, it fell flat with jurors.  It felt empty.  To jurors, if the company was truly sorry and truly cared about the consequences of its mistakes, it would have taken immediate action to rectify the weaknesses in its policies and internal communications.

Scenario 2:  “We’re Sorry for Our Mistake, and Here Is How We Fixed This Problem.”

The second juror quote, wherein the juror accepted the defendant’s apology and appeared forgiving, was a response to a case in which the defendant company took broad and deep steps not only to investigate what went wrong, but to implement far-reaching programs and policies to drastically reduce the chance that such an event could occur in the future.  Many mock jurors were satisfied that the company had learned from the incident and paid its dues by designating significant funds toward attacking the problem.

Repairing problems within a corporation can be powerful for jurors.  It decreases their desire to award damages (especially punitive damages) and, more importantly, it increases their willingness to listen to a causation case.

Is an Apology Right for My Case?

The success of an apology tends to boil down to the client’s ability to demonstrate to jurors that it reacted promptly and appropriately to any mistakes, taking firm measures to correct them and prevent them moving forward.  In other words, did it care enough to learn a lesson on its own?

We examined data across our six most recent mock trials, and found that approximately 40% of jurors did not believe large damage awards were enough to keep corporations honest (see Figure 1 below).  That is, jurors had a healthy dose of skepticism that corporations would do the right thing just because of the threat of damages from a lawsuit.  Many jurors view such damages as a slap on the wrist – what they want to see is action by the company to prove it’s voluntarily putting its reparations where its apology is.

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Conclusion

Thus, apologies and contrition can be important tools for reducing damages and persuading jurors to listen to the defense case with an open mind.  However, without a clear and completed action plan to prevent the same mistakes from happening again, they appear hollow, even insulting – leaving a bad taste in jurors’ mouths.

Ask yourself if your client responded aptly to its mistakes, and you’ll have a good sense about whether an apology will be effective.

Jill-Liebold By: Jill Leibold, P.h.D. – Director – Jury Research


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