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.


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