Apologies and Settlement

When one person allegedly injures another, he or she will often attempt to provide an account for the conduct that led to the injury. Specifically, he or she might attempt to disavow, explain, excuse, or justify the behavior that purportedly led to the injury. Alternately, he or she might offer an apology to the injured person. Apologies can be distinguished from other forms of accounting in that they acknowledge responsibility for the conduct that caused the harm. Accepting blame and expressing regret for one’s behavior signals a recognition of the norm or rule that was violated and of the harm caused to the other. Such acknowledgment can be complicated in the context of litigation. When the offense is such that it raises the possible involvement of the legal system, defendants, defense counsel, and insurance companies have traditionally worried that apologizing will only make things worse for the defendant; specifically, that any apology will be viewed as an admission and will lead to more certain legal liability. Indeed, there is evidence that although civil defendants, such as physicians in medical malpractice cases, may sometimes desire to offer apologies, they are also concerned that disclosure or acceptance of responsibility would increase the possibility for legal liability. As a general matter, of course, an apology by a party to litigation is potentially admissible under the exception to the hearsay rule that allows admission of a party’s own statements. Other rules of evidence may prevent the admission of certain apologetic statements in some circumstances – for example, statements made in settlement discussions may be protected under Rule 408. However, apologies that are made outside of these contexts are potentially admissible. Consequently, many defendants avoid apologizing and are so counseled by their attorneys and insurers

Evaluating Empirical Research Methods: Using Empirical Research in Law and Policy

I. Introduction . . . . . 777 II. Social Science Methods and Legal Questions . . . . . 779 A. Archival Research – The Nebraska Death Penalty Study . . . . . 780 B. Experimental Research – Death Qualification and Penalty Phase Instructions . . . . . 785 III. Obstacles to Evaluating Empirical Methodology . . . . . 789 A. Biased Assimilation . . . . . 790 B. Methodological Background . . . . . 795 IV. Strategies for Evaluating Empirical Research . . . . . 797 A. Explore the Tensions . . . . . 798 B. Research in Context . . . . . 799 C. Methodological Training . . . . . 801 V . Conclusion . . . . . 80

Apologies and Legal Settlement: An Empirical Examination

It is often said that U.S. legal culture discourages apologies. Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. They claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. In addition, some commentators argue that defendants might offer expressions of sympathy, rather than apologies that explicitly accept responsibility for having caused injury, in order to reap the benefits of apologizing while minimizing the risks. Critics of these so-called safe apologies argue, however, that apologies that avoid the legal consequences of apologizing - whether because the apology is merely an expression of sympathy or because it is protected by statute and is inadmissible - are devoid of moral content and likely ineffectual. Despite the recent surge of interest in, and debate over, the potential benefits of apologizing in legal cases, there has been very little empirical exploration of the ways in which apologies actually affect settlement decisionmaking. This Article seeks to fill the gap by providing much-needed data. The studies described here explore the proposition that apologies facilitate the settlement of civil disputes either by increasing potential plaintiffs\u27 inclination to accept a particular settlement offer or by altering parties\u27 perceptions and attributions in ways that might smooth the progress toward reaching a mutually satisfactory settlement agreement. More specifically, these studies explore the differing ways in which apologies are perceived and responded to when crafted to better insulate the offeror from legal liability (e.g., expressions of sympathy and statutorily protected apologies). This research suggests that an apology may favorably impact the prospects for settlement but that attention must be paid to both the nature of the apologetic expression and the circumstances of the individual case

Designing Amends for Lawful Civilian Casualties

In January 2015, a U.S.-initiated drone strike in Pakistan accidentally killed U.S. citizen Warren Weinstein and Italian aid worker Giovanni Lo Porto. President Obama compensated the families and gave a long speech in which he indicated that he want[ed] to express our grief and condolences to the families of two hostages. The President justified his declassification and disclosure of this strike because the [] families deserved to know the truth. He also offered the following mea culpa: As President and as Commander-in-Chief, I take full responsibility for all our counterterrorism operations . . . . I profoundly regret what happened. On behalf of the United States Government, I offer our deepest apologies