Saturday, April 09, 2005

Tort reform and civility: toward a national "apology privilege" 

Several states have passed or are considering laws that would bar a plaintiff from using a doctor's apology to establish liability in a medical malpractice case. As I blogged almost a year ago, this is a wonderful idea, and it should be expanded to include all defendants.

When somebody is injured, a genuine expression of contrition is a kind and noble thing, even if the person who apologizes is not actually or legally culpable. Not only does an apology comfort the injured -- and we should do what we can to comfort the injured in our society -- but it is the single best means to reduce litigation. As I wrote last year,
Anybody who has ever served as a general counsel of a corporation knows -- or should know -- that most people bring lawsuits because they are angry. Oh, sure, there is the occasional plaintiff that is greedy, or angry only because of some tremendously defective sense of justice and injustice. But many plaintiffs are plaintiffs because somebody did not act compassionately when compassion was called for. Terminated employees, for example, often bring cases not because they were fired, but because of the manner in which they were fired.

The problem, of course, is that the law burdens contrition with a significant legal cost. If you apologize, you can and will increase your liability, because the apology will be converted into evidence of culpability rather than civility. If you don't express your sorrow to an injured person, though, you both coursen our society and increase the chance that the person will become a plaintiff against you. You are damned if you do and damned if you don't. This is a ridiculous Hobson's choice, all to preserve the very dubious probative value of the apology.

Why is an apology of dubious probative value? Because in the absence of legal considerations, people apologize or express contrition or sorrow in all sorts of circumstances when they do not believe that they are actually culpable. They may do so because they want to help the victim, or because it is their habit stressful situations, or because their parents taught them to acknowledge the suffering of others. The fact of an apology in the moment of crisis or grief proves next to nothing, so justice does not benefit very much by making the apology available to the plaintiff's case.

The apology privilege, however, should extend beyond doctors to all potential defendants. As I wrote last time,
[i]t seems to me that we would benefit tremendously if corporations, CEOs, negligent neighbors, the local streets and sanitation department, the police, the school system, managers of playgrounds and athletic programs and the manufacturers of lawn darts all had the ability to apologize without fear that their sincere expression of remorse will expand their liability.

I also believe that there would be tremendous political power in a national apology privilege. Other than the trial bar, who could publicly object? What politician is going to vote against "saying you're sorry"? The benefits -- a society in which people felt free to express their sorrow -- would so outweigh the costs that every state in the country should adopt this legislation.

Since reform like this needs a little push, I have taken the liberty of drafting a form of the statute that we should enact.
Inadmissibility Of Statements Or Conduct Expressing Contrition, Regret Or Apology

(1) For the purpose of any civil action or administrative proceeding in the courts or agencies of [this State] [the United States] against any person,* any expression of contrition, regret or apology made by or on behalf of that person, including an expression of contrition, regret or apology that is made in writing or orally, does not constitute an admission of liability for any purpose, and no court or agency of [this State] [the United States] shall allow the admission of any such statement into evidence for any purpose.

(2) Any such person, or any other person who makes an expression of regret or apology on behalf of such person, may not be examined by deposition or otherwise in any civil or administrative proceeding in the courts of [this State] [the United States], including any arbitration or mediation proceeding, with respect to an expression of contrition, regret or apology made by or on behalf of the person, including expressions of contrition, regret or apology that are made in writing or orally.
*Including, for this purpose, corporations.

Comments are welcome. If you agree, feel free to recommend this post to your Congressman, Senator, or state legislator.


By Anonymous Anonymous, at Sat Apr 09, 07:42:00 PM:

You convinced me. Making apologies or other expressions of contrition inadmissible, while barring arguably evidence of some probitive value, furthers a valuable social policy of civility and, as you noted might well prevent the institution of many lawsuits.

In a sense, it is not unlike the rule barring the admission of subsequent remedial measures to prove negligence.

Nice going, TH.  

By Anonymous Anonymous, at Sun Apr 10, 04:17:00 PM:

I think it is, on balance, a good idea, but you're ignoring some serious potential problems. If a defendant does apologize in a manner that suggests an admission of liability, how do you think the plaintiff will react when he is told that he can't use that admission as evidence in court? As far as those people are concerned, this will look like a senseless legal technicality. Any rule that keeps certain evidence out of the courtroom is going to offend someone's sense of justice in some circumstances. There is definitely some force to the argument that we should put all evidence in front of the jury and allow them to decide what's relevant and what's not.  

By Blogger TigerHawk, at Sun Apr 10, 04:29:00 PM:

There is "some force" to that argument, but there are all sorts of circumstances where we exclude evidence -- however detrimental that exclusion might be to the case at hand -- because of some other public policy. For example, evidence adduced in a doctor/patient relationship, a priest/confessioner relationship, or an attorney/client relationship can all be excluded because we believe that candor on those settings is more important than the evidence itself. Well, I think that a broad social understanding that apology, contrition and sorrow may be genuinely and fully expressed without fear of incremental liability is also more important than the value of those statements as evidence. Plaintiffs have become used to these other "technicalities," so they will get used to this one, too. It might take a few applications of the concept in Boston Legal episodes, but they'll get the idea soon enough.

More to the point, why should the apology privilege be limited to defendants who are doctors?  

By Anonymous Anonymous, at Sun Apr 10, 06:29:00 PM:

I think the public reaction against apology exclusion would be stronger than the reaction against the other privileges you cite. In cases like attorney/client or doctor/patient, the privilege generally acts as a bar to discovery. In those cases, the privilege serves to keep that evidence out of court, but it also serves to keep the evidence generally out of the public domain. With an apology, the evidence is already in the hands of the plaintiff. It's just a question of whether the plaintiff can present the evidence in court.

Also, in an apology since the plaintiff has already seen the evidence, he knows exactly what he's missing by not being able to present it. Since the harm to the plaintiff's case is far more concrete, I think the plaintiff is likely to be much angrier about its exclusion.

The Boston Legal effect you mention would probably do more harm than good in a situation like this. A rule exluding apologies as evidence would cause substantial harm in a handful of cases, and more diffuse good in a larger number of cases. A case where a plaintiff has very valuable evidence stemming from an apology but is excluded from presenting it is far more dramatic than a case where a defendant is allowed to make an apology and everyone goes home happy. I would guess that a Boston Legal episode is more likely to look at cases where the apology exclusion works poorly.

I still think the apology exclusion is a good policy, but it's not as clear cut as you seem to think. There would be real opposition to it beyond the self-interested arguments of trial lawyers.  

By Anonymous Anonymous, at Sun Apr 10, 07:55:00 PM:

You know I think you might want to rethink your framework.

You have structured it so that the apology is the focus. What we really want to protect is the apologizer.

There could be an instance that the apoligizer would WANT to admit evidance that they had apoligised. I think this should be allowed since is is mitigation.

Prehaps it would be better to speak of an apoligizer's privilage and say only that an apology cannot be admitted in to evidance against the apoligiser at trial. Excluding it from use during discovery would be much tricker since it is known to the plantiff.  

By Blogger TigerHawk, at Sun Apr 10, 08:09:00 PM:

I think you need to protect not just the apologizer, but other defendants. The executive that apologizes needs to know that in so doing he won't subject the corporation to incremental liability. Similarly, one doctor needs to know that if he apologizes, other health care providers will not be hurt.  

By Anonymous Anonymous, at Thu Aug 24, 02:00:00 AM:

As a precedent you may be interested in the protection for apologies contained in the New South Wales Civil Liability Act 2002:

Civil Liability Act 2002 No 22

Part 10 Apologies

67 Application of Part

(1) This Part applies to civil liability of any kind.
(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B or civil liability for defamation.
Note. Section 20 of the Defamation Act 2005 makes similar provision to this Part about the effect of apologies in defamation proceedings.
68 Definition

In this Part:
apology means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.

69 Effect of apology on liability

(1) An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person:
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and
(b) is not relevant to the determination of fault or liability in connection with that matter.
(2) Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.  

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