There is a small trend a-foot in the state legislatures, and a welcome one at that: Providing some legal protection for people who want to apologize for their role in a harm, but who are fearful because of the possibility that their apologies will later be used against them in legal proceedings

Reuben, Richard C

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University of Missouri School of Law

University of Missouri School of Law Scholarship RepositoryFaculty Publications Faculty ScholarshipSummer 2000States Starting to Offer Legal Protection forApologyRichard C. ReubenUniversity of Missouri School of Law, reubenr@missouri.eduFollow this and additional works at: https://scholarship.law.missouri.edu/facpubsPart of the Torts CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at University of Missouri School of Law Scholarship Repository. It hasbeen accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. Formore information, please contact bassettcw@missouri.edu.Recommended CitationRichard C. Reuben, States Starting to Offer Legal Protection for Apology, 6 Dispute Resolution Magazine 30 (2000).Available at: https://scholarship.law.missouri.edu/facpubs/813I ADRNewsOv Rchar C. eubeStates Starting to Offer Legal Protection for ApologyT here is a small trend a-foot in the state legislatures,and a welcome one at that: Providing some legalprotection for people who want to apologize for their role ina harm, but who are fearful because of the possibility thattheir apologies will later be used against them in legalproceedings.California recently became the third state to enact suchapology, or "benevolent gestures," legislation, enactingsection 1160 of the California Evidence Code in July 2000.The state of Texas passed similar legislation in 1999, section18.061 of the Civil Practice and Remedies Code. Massachu-setts has had a benevolent gestures law on the books since1986.The problem that the legislation seeks to address isfairly straightforward. People involved in accidents oftenfeel a need to apologize for the incident, even when theymay not have been fully to blame. While this may be goodfor the human spirit, it's historically been bad legal advicebecause such statements may plausibly be inferred as anadmission or a statement against interest in a later legalproceeding. When it comes to the law, you are better offkeeping your mouth shut, despite the toll on the heart.The anomaly has been the subject of increasing studyby legal scholars in recent years, with at least two major lawreview articles published on the topic by prestigious lawschools, Yale and the University of Southern California LawCenter. The author of the first of those pieces, ProfessorJonathan R. Cohen of the University of Florida LevinCollege of Law, briefly summarized the issues for DisputeResolution Magazine. (See page 16, this issue.)The California legislation addresses the problem byamending its existing evidence rules to make "statements,writings, or benevolent gestures expressing sympathy or ageneral sense of benevolence relating to the pain, suffering,or death of a person involved in an accident" inadmissibleto prove the speaker's liability in a civil action when theyare made to the victim or the victim's family. However, theprovision also makes clear that routine admissions ofliability are not protected from admissibility.A simple car accident helps illustrate the point. Onedriver says to the other one of three things:* I am sorry.It was my fault.I 1 am sorry. It was my fault.Under the new California law, the first statement clearlycannot be used against the speaker in a subsequentproceeding. The second statement clearly can. Whatabout the third statement? The apology part is inadmis-Richard C. Reuben is an associate professor of law atthe University of Missouri-Columbia School of Law, andeditor of Dispute Resolution Magazine. He can be reachedat ReubenR@missouri.edu.sible, but the admission part comes in. (Arguably thiscould be problematic for the speaker, who may wish ajury to hear the apology along with the admission.)In drawing this line, the California law is narrowerthan the Massachusetts and Texas measures, neither ofwhich distinguishes statements of apology fromadmissions. In my view, the legislative clarity is helpfulbecause one may reasonably question how closelycourts will adhere to the more broadly worded Massa-chusetts and Texas statutes when the rubber hits theroad in a high-stakes case, particularly if the statement ismixed or ambiguous. The California approach at leastprovides sonic guidance, both to those wishing toapologize and to courts applying the rule in particularcases.But this is a relatively minor quibble compared tothe larger importance of the legislation in bringing thelaw into alignment with the human condition. May theother 47 states quickly follow suit!The Alternative Newsletter has resurfaced a yearafter the passing of its founding editor, James B. Boskey.The new managing editor is Robert Kirkman Collins, aNew Jersey lawyer and adjunct professor at Boskey'sformer Seton Hall University School of Law.The first edition ;% surely a keeper, with tributes toBoskey by his wife, Adele, and several former col-leagues, as well as the familiar eclectic mix of ADR news,cases and legislation of importance, practice standards,jobs, web sites, calendar information and so on. All ofthis material is still available for only $15 per year.For subscription information and other questionsabout The Alternative Newslette; contact Robert Collinsat collinro@shu.edu,John Lande has succeeded Bobbi MacAdoo as thedirector of the University of M issouri-Columbia Schoolof Law LL.M. program in Dispute Resolution.... RoccoScanza, a former American Arbitration Association seniorofficial, is now executive director of the Alliance forEducation in Dispute Resolution.... David Schwartz, alaw professor at the University of Wisconsin LawSchool, has filed an amicus brief on behalf of severallegal scholars (including myself, I must disclose) urgingthe U.S. Supreme Court to rule that the Federal Arbitra-tion Act does not apply to contracts of employment.Dispute Resolution Magazine Summer 2000is te Resolution Magazine Summer 2000

States Starting to Offer Legal Protection for Apology

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States Starting to Offer Legal Protection for Apology

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