Apologies and Legal Settlement: An Empirical Examination

It is often said that U.S. legal culture discourages apologies. Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. They claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. In addition, some commentators argue that defendants might offer expressions of sympathy, rather than apologies that explicitly accept responsibility for having caused injury, in order to reap the benefits of apologizing while minimizing the risks. Critics of these so-called “safe” apologies argue, however, that apologies that avoid the legal consequences of apologizing – whether because the apology is merely an expression of sympathy or because it is protected by statute and is inadmissible – are devoid of moral content and likely ineffectual. Despite the recent surge of interest in, and debate over, the potential benefits of apologizing in legal cases, there has been very little empirical exploration of the ways in which apologies actually affect settlement decisionmaking. This Article seeks to fill the gap by providing much-needed data. The studies described here explore the proposition that apologies facilitate the settlement of civil disputes either by increasing potential plaintiffs’ inclination to accept a particular settlement offer or by altering parties’ perceptions and attributions in ways that might smooth the progress toward reaching a mutually satisfactory settlement agreement. More specifically, these studies explore the differing ways in which apologies are perceived and responded to when crafted to better insulate the offeror from legal liability (e.g., expressions of sympathy and statutorily protected apologies). This research suggests that an apology may favorably impact the prospects for settlement but that attention must be paid to both the nature of the apologetic expression and the circumstances of the individual case.