Source of article Mind Matters Jury Consulting.

Every time jurors make a decision regarding a legal case, they perceive the situation and the facts through the lens of their personal experiences. So, what happens when the situation involves an apology made by a defendant to the plaintiff? The answer is not completely straight-forward. Like so many things in life, it depends.

In everyday life, apologies are a good thing. The social “rule” we learn at an early age is that if you hurt someone, you should apologize. In turn, if someone apologizes you should generally forgive them. We apologize in personal relationships (or we should) because it effectively soothes hurt feelings, defuses anger and paves the way to forgiveness and a stronger connection between individuals.

We have all personally experienced a wide range of apology options, ranging from those that accept personal responsibility for every wrong that has ever been done (the overly dramatic apology) to making excuses and blaming someone else (the non-apology). In between these extreme examples are the full apology and the partial apology.

The full apology has four main elements: (1) accepting responsibility for the wrong that was done; (2) expressing sincere regret or sorry for the injury incurred; (3) offering some means of repairing the situation; and (4) promising to correct the behavior and prevent the same thing from happening again. The partial apology contains just one or two of these elements. For example, “I’m sorry I ran into you, I didn’t see you there.”

What happens when an apology intersects with litigation? From the risk-management perspective, there is evidence that accepting responsibility for a mistake can reduce the likelihood of a lawsuit. Systematic program initiatives in Kentucky and Michigan have shown that after policies began encouraging doctors to apologize, admit to making errors and offering compensation, new claims dropped dramatically and settlement rates for the claims that were filed increased. Whether or not an apology will impact an injured person’s decision to sue or not largely depends on their motivation and perception of what happened – are they hurt, angry or desperate? Much of the research examining the role of apologies on litigation was done prior to the recent economic hardships, and it remains to be seen how financial need may outweigh personal forgiveness.

By the time we get involved in a case, however, the claim has been filed and does not appear likely to settle (at least not before depositions are completed). When an apology is a factor, the questions we are asked most often are related to how jurors will perceive the apology. Will jurors think the defendant accepts total liability? Or will they think he’s a nice guy and lower damage amounts? Is it possible to still argue liability if there is an apology out there?

There are always, always, always exceptions but here are a few general rules of thumb regarding apologies in litigation (assuming the apology was initially delivered in a timely manner shortly after the event). First, jurors appreciate a defendant who has the courage to offer a full apology and accept responsibility for his or her actions. It makes them more likable. However, it can also lead to greater perceptions of the defendant’s responsibility. If the apology is again repeated at trial, emphasizing the point even further, it can even increase the amount of damages.

Second, as long as it is sincere, a partial apology may not help the defendant in jurors’ eyes but it is unlikely to hurt him either. One way to understand how an apology may impact jurors’ view of a case is to test it through a mock trial or focus group. Pre-trial research can help answer questions about how jurors will perceive the apology, whether it makes a difference in damages and whether a trial team should fight to keep evidence of the apology out of the trial.

When we have researched the impact of apologies through a focus group or mock trial, the defendant’s apology is rarely the deciding factor for jurors. Rather, jurors interpret the apology based on their larger views of the case. If they favor the plaintiff, they interpret the apology to be a sign of guilt. If they favor the defense, they interpret the apology as merely reflecting the defendant’s moral character and sincerity.

Third, the one situation in which a full apology should seriously be considered in litigation, even late in the game, is when there is not a strong liability argument and punitive damages are at issue. In this circumstance, the best trial strategy is to diffuse juror anger at the defendant by offering a sincere and full apology that includes a specific offer to remedy the situation, but it must be done well.  If the apology deflects responsibility for the consequences or blames another party, it will likely only fuel anger and increase jurors’ need to teach a lesson.

The bottom line is that jurors evaluate apologies at trial the same way they do in their everyday life. Is the person sincere? Are they accepting or shirking responsibility? Does the apology make sense? Is what happened black-and-white or is there a broader explanation? All of these issues can be factored in to the case story so that it makes sense to jurors.