“I don’t care if it’s Tiger Woods, Bernie Madoff, or Toyota, if an apology comes late it’s going to be seen as phony,” Atlanta lawyer Jimmy Faircloth told the Los Angeles Times recently. Faircloth is among a number of litigators representing plaintiffs suing Toyota for alleged acceleration incidents involving its automobiles. Most lawyers agree the Toyota acceleration litigation will be long, complex, involve multiple jurisdictions and reach “historic proportions.” See “Lawyers Circle Toyota”
I beg to differ with Faircloth, because I believe it is never too late for a sincere apology.
Here’s the dilemma: Most product manufacturers that allegedly cause injury are advised against apologizing because it could be viewed as an admission of wrongdoing. Most injured parties require something more than an apology to be made whole. Defendants realize that no matter what, they are still on the hook for monetary damages, so why bother. Besides, they think that no matter what they say, it won’t ever be enough. Just ask Faircloth.
So why apologize? I submit that it is almost always the right thing to do – both ethically and strategically. From a strategic perspective, people (plaintiffs) will fight longer and harder in the absence of an apology. And why is that? Because absent expressions of real remorse or empathy from the alleged wrongdoer, the aggrieved person has no choice but to fill that vacuum with his or her own worst imagination. Couple that with the frustration of not having expectations of an apology or empathy met, and you have a recipe for explosion.
Wouldn’t a sincere apology from the Pope regarding the Catholic Church sex abuse scandal ease a good deal of the public’s outrage about the Church’s handling of the incidents? Without that, people fill that void by assigning to the Church feelings of apathy, indifference, even tacit acceptance, and it is that array of feelings to which people are reacting.
In Toyota’s case, company President Akia Toyoda apologized publicly. He said the important words, “I am sorry for any accident Toyota drivers have experienced … and I will do everything in my power to ensure such a tragedy never happens again.” You can listen to his entire apology here: http://aiminst.com/toyoda.
Is he sincere? Only time will tell, but the world will be watching Toyota’s production quality very closely, and skeptically, to see.
Litigants don’t have the opportunity to offer or hear apologies such as the one Toyoda made to Congress and the world. In civil litigation for monetary damages where lawyers and witnesses do all the talking, apologies are almost never a part of the equation (except sometimes on TV dramas).
Mediation is different, however. In mediation, litigants come together for the express purpose of talking about their disputes in an environment that both encourages and facilitates apologies as part of resolution. For some parties, hearing the words “I’m sorry” is part of being made whole. For defendants, having the opportunity to say and mean those words can lift a burden they may have carried for years.
I have seen apologies work wonders for all involved in sexual harassment and discrimination cases, medical malpractice cases, product liability and personal injury cases.
Once, in a sexual harassment suit I mediated, after the plaintiff told how the harassment had affected her entire life, the defendant shocked us all when he literally confessed. “I did it,” he said. “I did everything she just described.” He could only do that because of the protections provided by mediation. He went on to apologize, explaining that he thought they were all just goofing around, that everyone in their workplace flirted with everyone, that he never dreamed his actions affected her the way they had and that if someone had ever made his wife feel the way she was describing, he would want to strangle the guy. He apologized sincerely, asked for her forgiveness, and wanted to know what he could do to make it better. Those are the three components of a real apology. More important, his words gave that plaintiff exactly what she needed. The modest amount of money she accepted meant less to her than the apology.
In a medical malpractice case, when the plaintiff talked of losing her elderly mother, the hospital’s risk manager answered, not by denying liability, but by telling her own story of loss – her elderly father in a hospital. Upon hearing that, the plaintiff felt she had someone on the other side who understood her. We were able to resolve that case in about 30 minutes with just one monetary offer. Read more about this at http://aiminst.com/advopen.
So, my advice to Faircloth — and all who are skeptical about the motives behind apologies — is that the words “I’m sorry” mean something, no matter how long you have to wait to give or receive them.