Advice on Apologies in Litigated Cases

A Canadian litigator recently offered some advice regarding an apology in litigated cases. Canada has a federal “apology act,” much like many U. S. states, which makes a statement of sympathy or regret inadmissible to prove liability. But the law has limitations, that lawyers are duty-bound to point out to their clients, lest clients think this will get them off the hook. For example, if the offender saves his apology until trial, it is not protected and can be used as evidence of liability.

Michigan’s “apology act” is limited to medical malpractice actions. It doesn’t have the specific exception about trial and deposition testimony that Canada’s act has, but it is limited to protecting statements made to the victim and the victim’s family, so a statement of sympathy made in court might not be protected under the statute.

Nevertheless, a sincere expression of regret can go a long ways towards preventing a lawsuit in the first place.


Roseanne Barr Acknowledges God in Apology

A month ago, Roseanne Barr tweeted a very derisive comment about former President Obama’s close advisor Valerie Jarrett. When Ms. Barr was criticized for her tweet, she blamed it on the fact that she had taken the sleep-inducing drug Ambien. One consequence of her tweets is that ABC removed her from the new hit show that bore her name.

Ms. Barr quickly issued a brief apology: “I apologize to Valerie Jarrett and to all Americans. I am truly sorry for making a bad joke about her politics and her looks. I should have known better. Forgive me-my joke was in bad taste.” Yesterday her friend Rabbi Schmuley Boteach posted an apology he recorded in a recent interview with Ms. Barr. It included these comments:

“I said to God, ‘I am willing to accept whatever consequences this brings because I know I’ve done wrong. I’m going to accept what the consequences are,’ and I do, and I have. But they don’t ever stop. They don’t accept my apology, or explanation. And I’ve made myself a hate magnet. And as a Jew, it’s just horrible. It’s horrible.”

Barr said of her tweet that she “didn’t mean what they think I meant.” She noted that she has black children in her family. “I never would wittingly say that a black person is a monkey. I just wouldn’t do that.” She is presumably trying to refute the assumption that her comment was racist, which she insists she is not.

“But I have to face that it hurt people. When you hurt people even unwillingly there’s no excuse. I don’t want to run off and blather on with excuses. But I apologize to anyone who thought, or felt offended and who thought that I meant something that I, in fact, did not mean. It was my own ignorance, and there’s no excuse for that ignorance.”

She also addressed the Ambien tweet: “That’s no excuse, but that’s what was real.”

“I’ve lost everything. And I regretted it before I lost everything.” She said this presumably to curb the suspicion that she was apologizing only because she’d lost her TV show.

Ms. Barr was weeping through much of the interview. From the perspective of analyzing an apology, “tears” are an interesting factor. If the words and tone are right, tears can amp up the “sincerity” quotient. But many listeners – especially, in my humble experience, men – tend to deem a tearful apology less credible than a non-tearful one.

Roseanne Barr’s apology is pretty good, for a public apology. She specifically addresses the offense, takes full responsibility for it, and acknowledges the consequences–sort of. If her comment about God truly is a prayer for help to accept the consequences, she’s on the right track. Many of her words sound like an explanation, which isn’t always helpful in an apology. She does not offer what she’s going to do to prevent such offenses in the future — for example, forswear Twitter. And one wonders if she apologized privately to Ms. Jarrett.

Insights into the Art of Apology

NPR broadcast a very interesting story this week on the art of apology, exploring what makes or breaks an effective apology: “A Case Study in How to Apologize for a War  Crime.” In this case, there were two attempts to apologize–the first further angered the victims, the second was even better than expected.

The backdrop was World War II, when American soldiers were imprisoned in Japan and suffered under conditions which violated the Geneva Convention. In 2009, the Japanese ambassador attempted to apologize to a room full of former POWs, but the wording was so weak that it prompted half the soldiers in the audience to turn their backs on the speakers. A good apology is specific, but this one was vague, e.g., apologizing “to all those who lost their lives in the war.” It did not say for what the speaker was apologizing.

One of the soldiers, James Murphy, still traumatized from his horrific abuse laboring in the copper mines of Mitsubishi, said he wanted to hear something along the lines of, “Sorry and that you won’t do it again.”

In this case, the “mediator” (the story refers to her as “the apology broker”) was a woman, Kinue Tokudome, who had grown up in Japan but lived in the U.S. She discerned the difference between the Japanese idea of apology — “soaked in shame” — and the POWs’ desire for an acknowledgement of the wrongs done to them. She was able to arrange for Mitsubishi executives to apologize to POWs imprisoned there. Mitsubishi had previously refused to apologize, contending that to admit the history of forced labor would be to saddle Japan with a centuries-long “burden of the soul.” But the year before last, Mitsubishi executives met with James Murphy and a few other POWs still alive, and Mitsubishi senior executive Hikari Kimura said, “When I understand the sad truth of the matter, I feel a pained sense of ethical responsibility as a fellow human being.” Then all the executives bowed. Mr. Murphy said it “was almost embarrassing” how much feeling they put into it.

In this case, the offender made an incorrect assumption about what an “apology” would say, or what the victim wanted to hear. The bi-cultural woman who served as “the apology broker” was able to identify the crossed signals and facilitate an effective apology. Sometimes, just finding out what the victim needs to hear can prompt a good apology.

MSU Mediation Described

Former Michigan Supreme Court Justice Robert Young, who was appointed by Interim MSU President John Engler to represent MSU in defending lawsuits brought by hundreds of people abused by former MSU sports doctor Larry Nasser, described yesterday more about the mediation that settled those lawsuits last week. He said in an interview with Tim Skubick that the plaintiffs initially demanded “over a billion” dollars, but that the $500 million settlement figure was the right number. He wouldn’t explain why it was the right number, “but I’m confident really there was a very good basis for that number.”

Parties to mediation usually do not reveal details of the mediation, like a party’s opening demand. In fact, Michigan Court Rule 2.412 declares that all statements made in mediation are confidential, unless they fit into an exception. Justice Young is obviously aware of confidentiality (“I can’t tell you why”) but has a narrower view than most of what is and isn’t confidential, thus giving us outsiders a peek into an important mediation.

MSU Mediation Ends With Agreement

The settlement announced yesterday between Michigan State University and 332 assault victims of MSU sports doctor Larry Nassar has to be one of the largest mediated settlements ever: $500 million. The parties whose lawsuits were in federal court attempted mediation last year, reaching a partial agreement. After Nassar was sentenced this past January, all of the parties agreed to mediation with a different mediator, former federal judge Layn Phillips. The mediation lasted just a couple of weeks.

The settlement involves only money. While survivors spoke with disappointment afterwards about other goals not met – from changing the MSU culture to receiving an apology — , in the end they must have decided to pursue those goals outside of mediation, rather than prolong the mediation.

One question on Michigan taxpayers’ minds: where will MSU come up with the money? Is it possible that the University has insurance coverage this broad? Or will it, as a public institution, look to the State for help?

Or is MSU hoping to raise the money from alumni? Is it just a coincidence that we received a phone call today from MSU asking for a donation? Having an alum in the family, we contribute annually – every December. So why is MSU calling us in May, just days after promising a half billion dollars to lawsuit plaintiffs? The student caller insisted there was no connection — of course.


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