Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
Sometimes advocacy is 100 percent: Everything your client did, literally everything, was right. But other times — more often I would say, if we’re being honest — there is something that isn’t perfect. The defendant made some mistakes in how it handled the situation, or the plaintiff missed some steps when it came to self-protection, for example. And in those situations, acknowledging that and, in effect, admitting to what the jury is almost certain to conclude anyway, is a step that is necessary for credibility and helpful in putting the focus where it needs to be.
But an admission can be tricky for both clients and attorneys to deal with. At one level, it cuts against the adversarial impulse of saying, “I’m right and they’re wrong, period.” An admission can also be tricky, however, when it is treated as an all-or-nothing proposition. For example, in strategy sessions, the suggestion that it might be wise to make an admission can sometimes be met with the attitude of, “No way, we’re going to fight this…we’re not going to admit anything!” In the midst of a fierce trial battle, the call for even a partial admission can sound like the bugles of retreat. However, there is an important distinction to be drawn. When clients and attorneys are conscious and explicit about the difference between a hard admission of liability and a soft admission of some level of mistake that falls short of liability, that distinction can help smooth the way to a good strategic decision and a clear message in trial.
The Distinction: A Hard Versus Soft Admission of Fault
It is important to draw a distinction between a ‘hard acknowledgment,’ that would mean admitting liability, and a ‘soft acknowledgment’ which just means admitting some level of mistake or circumstances where the party you represent could have done better. The first is a clear move to sacrifice some potential legal disputes in order to focus on others. The second aims to meet jurors halfway with the message that your client agrees that there were some aspects of the situation that could have been better handled.
Common Ingredients to Both
Whether an admission is hard or soft, you want to be clear in what you are admitting. What you don’t want is for the message to sound evasive, inconsistent or insincere. And, while the focus remains on improving your position over your adversary’s, it can sound like deflection if your acknowledgment is immediately follow by a “But…” that focuses on the other side. A clean admission with some space around it is ultimately going to serve you better.
While an acknowledgment of fault isn’t always an apology, when it does take that form, it helps to remember the ‘Four R’s’ of apology that we have written about previously: Responsibility (“I broke that window”), Remorse (“I really wish I hadn’t”), Repair (“I will fix it”), and Reform (“In the future, I won’t do my batting practice near your house”). One can imagine a company defendant’s admission hitting each one of those boxes:
These violations are on us, and the company is sick about them. We’ve committed to fixing every one, and will also fix the policies and the culture that allowed them to happen.
The completeness of this acknowledgment is better than a partial acknowledgment (e.g., remorse but no reform), which can be worse than no acknowledgment at all.
Unique Ingredients of a Hard Admission
Most often for the defense, a hard admission means acknowledging liability (in order to turn the focus to causation or damages), and for plaintiff it might mean accepting some measure of comparative fault (in order to turn more focus back to the defendant’s role). The main unique element is the need to be very clear about what you are and are not conceding. If you can do it, it helps to go to the verdict form as early as possible to say, “Here is where we are agreeing with the other side that you can mark, ‘Yes,’” and to also add, “But here is where you should say ‘No.’”
It also helps to demonstrate your desired focus. In other words, if you want the jury to spend 90 percent of their deliberation time on causation, you should spend 90 percent of your own presentation time there.
Unique Ingredients of a Soft Admission
In the case of a soft acknowledgment, the key distinction is between the mistake you are acknowledging and the liability or fault that you are not acknowledging. For example,
The company made mistakes in the hiring process: We did not keep enough documentation, and that was a mistake. But the company did not discriminate based on gender, age, or any other factor.
The context here is one of self-criticism rather than confession. The message for the company is that we are self-critical. The message for an individual is that it is natural to look at what, including our own actions, could have avoided this situation.
To the legal team, a soft admission might not seem necessary or even relevant. The case, after all, is about liability and not about mistakes that fall short of liability. But some level of admission can still play an important role in persuading and building credibility. To the jurors, it means conveying the message in effect that, “Okay, we agree with you on that one,” and the credibility gained through that acknowledgment can help to make it more believable that you are denying the liability component of the case. It might also help to simply put jurors in a less punitive frame of mind when it comes to assessing your client.
Other Posts on Apology and Admission:
- The Key to the Defendant Apology: Say What You Mean, and Mean What You Say
- Repair the Corporate Image
- Show You’re Sorry, Even When You’re Not at Fault
Image credit: 123rf.com, composite, used under license.