In today’s litigious society saying “I’m sorry” can be a legal disaster.

This is so because your words of contrition can, and very often will, be used against you in a future legal proceeding as evidence of your culpability. The reason for this rule is that such expressions often do provide some evidence of the speaker’s culpability (or writer’s if the apology is written), but sometimes they do not.

People in everyday life say “I’m sorry” for all sorts of reasons that are not intended as an admission of culpability. They say it, more often than not, because it is a civilized thing to do and often will help defuse a potentially explosive situation or assuage the anger and hurt feelings that often spawn lawsuits.

TigerHawk has written an excellent post on the subject in which he points out that several states have enacted, or are considering enacting, an “Apology Privilege” for physicians, which would permit a doctor to apologize to a patient after something has gone medically wrong without having the apology used against him or her in court.

This reminded me of surveys I have read (and cannot point to at the moment) that show that the doctors who are most often sued are not those practitioners who have tended to the health of a family for years, but rather the high-powered, high priced specialists. The reason given for this phenomenon is that the specialist often views the patient as just another case and, as a result, has a lousy bedside manner. I suspect that another reason might be that high-powered specialists are also more likely to be well-represented by high-powered lawyers who instruct their doctor clients to “Always be careful about what you say to a patient because it can come back to haunt you later.”

TigerHawk suggests that an Apology Privilege should not be limited to physicians, but rather should be available to everyone as a means to advancing civility in society and possibly even reducing the number of lawsuits that would be brought. In that regard, TigerHawk donned his legal cap and drafted a model statutory provision, entitled, Inadmissibility Of Statements Or Conduct Expressing Contrition, Regret Or Apology, which, in my view, ought to be considered for adoption by federal and state legislators.

JamulBlog is skeptical about whether such an “Apology Privilege” would have a significant effect on reducing the number of lawsuits, because there are some lawsuits where an apology that is unaccompanied by an offer of payment for damages would not prevent an action (and he cites a good example). Assuming that he is right in doubting that an Apology Privilege might not significantly reduce the number of truly meritorious lawsuits, we agree that the such a privilege is not a bad idea. I cannot see how it could hurt.

Not admitting evidence of a stated apology should not damage or discourage the bringing of a meritorious case, because if a case is truly meritorious, there ought to be ample evidence to prove wrongdoing of the defendant beyond the evidence of a statement of contrition (which, as noted above, may not be very probative to begin with).

Furthermore, even if an Apology Privilege would not significantly reduce the number of lawsuits, it would serve the purpose of encouraging civility in society, something that is in woefully short supply today.

A few years ago, I read an article in a legal publication that examined the American rule of permitting the use of an apology to prove culpability and pointed out how disastrous such a policy would be in Japan. The article explained that, in the context of an accident with injuries, the worst thing a potential defendant can do is to fail to offer an apology. In fact, the article pointed out that woe is the potential defendant who doesn’t show up at the hospital bed of the accident victim with profuse apologies, flowers, and an offer to help make things right.

I view the Apology Privilege much the same way as I do the evidence rule that prohibits the use of “subsequent remedial measures” to prove negligence.** Stripped of detail, that rule provides that, if you are a landlord and someone falls down your stairs and, after the accident, you install a banister, the installation of the banister cannot be offered into evidence to prove that your not having a banister in the first place was negligent.

While the installation of a banister after an accident might well be very probative of the negligence in not having had a banister in the first place, the rule advances the important societal goal of encouraging people to fix things in order to make them safe. The rule also encourages people who have not been negligent to take measures to make things “safer than safe.” After all, the facts might ultimately show that the person who fell on the stairs was drunk, or that a banister would not have prevented the fall. The rule permits responsible people to make their property even safer without penalizing them for it.

In the end, an “Apology Privilege,” much like the “Subsequent Remedial Measure” rule makes commons sense, and that too is in short supply these days.

**Note to the lawyers out there: I am aware that it is often possible to offer subsequent design changes to prove the existence of a design defect in a products liability case, but that issue is well beyond the scope of this post.