Party Unable to Void Settlement Despite Allegation of Duress

The plaintiffs in a medical malpractice suit settled their case after mediation, then tried to get out of the settlement. When they couldn’t, they sued their lawyers for legal malpractice, claiming the lawyers settled for too low an amount and that their attorneys “had caused them to settle under duress.” The Appeals Court of Massachusetts denied their claim. Abdulky v. Lubin & Meyer, 102 Mass. App. Ct. 441 (Mass. App. Ct. 2023) Plaintiffs’ appeal to the U.S. Supreme Court was denied this week.

The parents of a 5-year-old child brought the medical malpractice action in 2015 against a number of doctors and their hospital after the child’s arm was amputated below the elbow. The parents engaged in mediation and in settlement negotiations, after which they agreed to accept the defendants’ insurers’ offer of $6 million. However, at the settlement hearing, the parents indicated that they had reservations about the settlement. The judge had an off-the-record discussion with the parents about their reservations, then determined that the case was settled. The judge also asked the father if he felt “pressured” into a settlement; the father said no. At the next hearing, the parents attempted to reverse the settlement; the judge did not let them. At yet another hearing, the parents filed a motion to void the settlement agreement on grounds that the settlement failed to properly consider the costs of the child’s future prosthetic needs, as well as that the parents had entered the agreement under duress, due to their fear that a guardian ad litem would be appointed to evaluate the settlement.

When the trial court nevertheless enforced the settlement, the parents sued their attorneys for malpractice. The appeals court determined that the parents hadn’t produced evidence demonstrating that the settlement was insufficient to cover the costs of the child’s future prosthetic needs, so the attorney malpractice action was dismissed.

This case proves how difficult it is to get out of a settlement agreement once entered into; courts want finality and aren’t sympathetic to a party that changes their mind. It also illustrates the feeling of pressure or duress that a party may feel in the course of a mediation or settlement negotiations. Attorneys and mediators do well to note, and try to address, this feeling before it threatens to undo the settlement.

Soccer Captain Apologizes for Criticizing Fans

Lindsey Horan, the captain of the US women’s soccer team, gave an interview to The Athletic, published earlier this month, in which she expressed her frustration with American soccer fans. She observed that most of them “aren’t smart, they don’t know the game, they don’t understand.” Apparently she was widely criticized for those remarks, so today she issued an apology.

“First and foremost, I would like to apologize to our fans. Some of my comments were poorly expressed and there was a massive lesson learned for me. When I think about our fans, I love them so much, this team loves them so much, and I can’t begin to explain how much they mean to us … The soccer culture in America is changing so much in a positive way.”

She went on to say that the fans are her inspiration, and that it is an honor for her to represent the national team.

“The last thing I ever wanted to do was to offend anyone in that manner. So, again, I deeply, deeply apologize.”

This is a tactical apology, where the speaker says what they need to say in order to move on (as opposed to an apology from the heart, where the speaker is genuinely contrite). That her “comments were poorly expressed” sounds good, but that implies that she was trying to say something else and it just came out sounding like Americans fans aren’t knowledgeable. But isn’t that indeed what she really meant to say? It’s not that her thought was “poorly expressed,” it’s that she never should’ve expressed it at all, in any form. At least, not now, when the US soccer team is getting ready for the Olympics and needs all the fan support it can get.

She says she learned “a massive lesson,” without indicating what it was. It would’ve been a stronger apology had she specified what she learned – or exactly what she did wrong.

Better: “I made some critical comments about our fans that hurt them, and I deeply regret what I said. I love our fans, and they have made huge strides in understanding the intricacies of the game, so I never should have said that they were not knowledgeable. It’s an honor to play for them, and I have the deepest gratitude and admiration for them. From now on I want to emphasize that instead of what I said earlier. I hope our fans can forgive me.”

Mark Zuckerberg Apologies to Families Spontaneously

I’ve noted in these blogs how difficult it is to make a public apology. Yesterday Mark Zuckerberg offered an apology that was not only public, it was spontaneous – and compelled (at least, I presume he did not see this coming). Mr. Zuckerberg was testifying in a Senate child safety hearing attended by family members whose young relatives had been harmed by social media, including FaceBook, owned by Zuckerberg’s company, Meta. Senator Josh Hawley asked if Zuckerberg had ever apologized to the families, and when Zuckerberg hesitated, Hawley asked if he’d like to do it right there. So Zuckerberg stood up, turned around to face the crowd behind him, and spoke:

“I’m sorry for everything that you have all gone through. It’s terrible. No one should have to go through the things that your families have. This is why we invest so much, and are going to continue doing industry-leading efforts … to make sure that no one has to go through the types of things that your families have had to suffer.”

I doubt that this statement brought any comfort to those family members. It isn’t even quite an apology. It’s an acknowledgement that something terrible happened, and that the speaker feels sorry for them. It also talks about efforts to improve things in the future. But there’s no responsibility, no admission of anything specific that the speaker did to cause the victims harm.

What did impress me – especially because it was spontaneous – is what he didn’t say. He didn’t downplay the families’ pain – instead, he mentioned it more than once. He didn’t suggest that they should be blaming other sources and not him. He didn’t offer explanations or excuses. Public apologies often fall apart because they wander into one of these danger zones. He avoided those.

A little over a year ago, Zuckerberg issued a public apology when he laid off a few thousand Meta employees. I was impressed with that apology because he took ownership for the problem without offering a defense (“I got this wrong and I take responsibility for that.”) (see my post of November 12, 2022) Public apologies are hard to do. Mark Zuckerberg keeps getting opportunities to remind us of that.

Federal Court Refines Claims Subject to “Ministerial Exception”

The “ministerial exception” to laws governing employment relationships in the U.S. prevents courts from considering employment-related legal claims made by church employees, or former employees, who meet the definition of a “minister.” Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). The exception encourages churches to resolve employment disputes internally rather than in court (which is in keeping with I Corinthians 6:1-8), and prevents courts from delving into ecclesiastical details that could impinge on First Amendment religious freedoms. Do all claims from a former church minister fall within the ministerial exception? A federal district court in New Jersey ruled yesterday that, while claims of wrongful discharge and racial discrimination are barred by the ministerial exception, a claim of defamation is not.

The case, Uzomechina v. Episcopal Diocese of New Jersey (D NJ No. 3:2023cvo2914, Jan. 18, 2024), involves an African-American Episcopal priest who was discharged by the Diocese for financial and sexual misconduct. The priest then obtained a job at a drug addiction clinic, but claims that Diocesan officials published false statements about him so that the drug clinic dismissed him as well. The priest, Gideon A. Uzomechina, then sued the Episcopal Diocese and the drug clinic for wrongful discharge based on race discrimination, breach of contract, and defamation. The Diocese argued that the “ministerial exception” required the court to dismiss the case. There was no dispute here that the plaintiff fit the legal definition of a “minister.”

The federal court cited numerous cases that have dismissed claims of racial discrimination and wrongful discharge based on the ministerial exception in dismissing those claims in this case as well.

As to the defamation claim, the court noted that, while courts typically bar tort claims that arise from an internal church disciplinary process where the alleged defamation occurred within the church, the alleged defamation in this case occurred to non-church members (the drug clinic staff). The court determined that the Diocese, by sharing its internal disciplinary procedures and beliefs with a third party, subjected itself to a tort claim. Nevertheless, the court found in this case that the plaintiff had failed to plead sufficient facts to support a valid claim, and dismissed all the claims against the drug clinic on the same ground.

The ministerial exception is an important component of religious freedom, and courts will continue to wrestle with its applicability to messy church employment situations.

For Whose Benefit is an Apology?

There are two main parties to an apology: the offender (the one who apologizes) and the victim. There may also be a third party, an indirect victim of the offense. So when the offender apologizes, who benefits?

In a Pittsburgh court a few years ago, two men were sentenced after pleading guilty for their roles in stealing numerous rare books and artifacts from the Carnegie Library’s rare book room over a period of years. At the start of their sentencing hearing, they each apologized – to their families, to the Library, and to the city of Pittsburgh.

But the president and director of the Carnegie Library of Pittsburgh, Mary Frances Cooper, said, “Sometimes victims say they want an apology. We do not want an apology. Any apology from these thieves would be meaningless. They are only sorry that we discovered what they did.”

Does it do any good for an offender to apologize when the victim doesn’t want to hear it?

Speaker: An apology may be for the benefit of the offender, to restore the offender to community and “to regain moral integrity.” Jennifer Gerarda Brown, “The Role of Apology in Negotiation,” 87 Marquette Law Review 665, 666-667 (2004). From a spiritual perspective, Christians are exhorted to confess their sins, both to God (I John 1:9) and to one another (James 5:16). These commands are not conditioned on the victim’s interest or acceptance; they are essential to restoring the relationship between the offender and God.

Recipient: A good apology can be a tremendous benefit to the victim recipient. It can assure the recipient that it was the offender, and not the victim, who bore responsibility for the harm that occurred. It can remove the obstacle hindering a good relationship and offer the potential for a better future.

Community: The community of which victim and offender are a part may also benefit from a good apology. While not suffering direct loss, the community suffers the rupture of the relationship and may need the apology to begin restoration. Even if the victim cannot fully accept the apology, the community may benefit from it.

When convicted criminals apologize at the start of their sentencing hearing, we can question their sincerity and assume it’s to procure a lighter sentence. But it could also be their last best chance to declare publicly their remorse. If these men are to recover from their crimes and regain any moral integrity, they must acknowledge the full extent of the wrong they did, and repent of it – whether or not the victims accept it. A person who is truly repentant will seek to learn what more needs to be done in order for a victim to accept the apology.

It may take time for a victim to accept an apology. Victims may first need to absorb the full extent of the harm done. In the Pittsburgh case, the Library director is apparently not seeing remorse, and she probably would like full restitution, before she can accept the apology. But even if she cannot accept it now, it may still help her that the offenders expressed it. It may be the little ray of light in the darkness of her pain, that offers hope.

Even if the victim cannot receive the apology, it may benefit the wider community that was negatively affected by the wrong. If these thieves are ever to be restored to their families and communities (in which they’re living, since they received only probation with no incarceration), they will need to repent fully. The community may be currently skeptical, but there may have been some small bit of satisfaction in hearing these men publicly state their remorse and regret.

A good apology is never wasted.