57 Pages Posted: 28 Apr 2005
The conventional wisdom has been that U.S. legal culture discourages apologies. Defendants worry that apologies will be admissible at trial and interpreted as admissions of responsibility. In recent years, however, legal scholars have debated the merits of encouraging parties to apologize. Proponents of apologies claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that make certain apologies inadmissible. In addition, some have argued that defendants might craft their apologies to better insulate them from legal liability (e.g., offering a mere expression of sympathy) in order to reap the benefits of apologizing while minimizing the risks. On the other side, however, critics of these so-called safe apologies have argued that apologies that avoid the legal consequences of apologizing are devoid of moral content and likely ineffectual. Much of this debate, however, has occurred in the absence of sound empirical data.
The article reports the findings of two experimental studies in which participants were asked to read a vignette describing an accident, to take on the role of the injured party, to indicate whether or not they were likely to accept a settlement offer from the other party, and to respond to a series of questions about the situation.
In the first study, a full, responsibility accepting, apology increased the likelihood that the offer would be accepted. In contrast, a partial, sympathy expressing, apology increased participants' uncertainty about whether or not to accept the offer. In addition, a full apology (but not a partial apology) resulted in more positive ratings of numerous variables that are thought to underlie the settlement decision. These underlying judgments provided the mechanism by which apologies influenced settlement decisions. Importantly for the debate over evidentiary protection for apologies, the nature of the applicable evidentiary rule did not influence the apologies' effect on settlement decisions nor did these rules influence participants' perceptions of the situation or the offender.
Consistent with the results of the first study, the second study found that apologies influenced participants' attributions and perceptions of the situation and the offender. Overall, full apologies improved the participants' perceptions of the situation and the offender, while partial apologies did little to alter such perceptions. There were patterns in the data suggesting both that partial apologies may negatively impact perceptions where responsibility is relatively clear or where the injury is more severe and that partial apologies may positively impact perceptions where responsibility is relatively less clear or where the injury is relatively minor. In addition, and again consistent with the results of the first study, this study provided no evidence that the nature of the applicable evidentiary rule will influence participants' perceptions of the situation, the offender, or the apology.
These findings provide some guidance for policymakers and litigants or potential litigants with difficult decisions to make about the appropriate evidentiary protection for apologies, whether to offer an apology to an opposing party in civil litigation, and how to respond to an apology so offered.
Keywords: Apology, settlement, negotiation, decision making
JEL Classification: K13, K41
Suggested Citation: Suggested Citation
Robbennolt, Jennifer K., Apologies and Legal Settlement: An Empirical Examination. Michigan Law Review, Vol. 102, No. 460, 2003. Available at SSRN: https://ssrn.com/abstract=708361