A 'Sorry' Strategy

A soft answer turns away wrath. Proverbs 15:1

As reasonable as this biblical teaching sounds, conventional legal wisdom, for the most part, holds otherwise.

When the threat of litigation arises, attorneys typically admonish their clients to take a tough stand: Show your mettle! Refuse to be intimidated! Be confident you will win in court!

Apologizing to the party threatening legal action is antithetical to this approach. Moreover, counsel will tell you, a court could deem an apology to be an admission of liability that may lead to a costly jury verdict. Therefore, the doctor doesn’t apologize to the patient. The CEO doesn’t say sorry to investors. The supplier acknowledges no responsibility for the customer’s problem. The same goes for employers and employees when workplace problems with potential legal ramifications arise.

Questioning the wisdom of this hard-line approach, this article explores whether there may be times when management’s apology might make sense perhaps with respect to discipline or discharge, failure to hire or promote, or demotion.

Is an apology advisable when an employee threatens legal action in connection with disputed results of an internal investigation of a sexual harassment allegation or a purported ethics violation, for example? Does it matter if the employee’s grievance lacks merit? What if others have been hurt or are aggrieved? What if a claim already has been made?

Not surprisingly, I cannot give a precise answer for every conceivable circumstance. Instead, I offer several points that you may find useful. But first, for some perspective, let’s look at examples from outside the workplace.

Apologies And Medical Malpractice

Even more so than the employer-employee relationship, the doctor-patient relationship is fraught with potential for high-stakes litigation. For years, the rule of thumb for medical professionals was never to apologize for patient injury that might be connected to the rendering of medical services; any apology might well pave the way to a lucrative plaintiff’s verdict.

However, as reported in Dr. Aaron Lazares insightful book On Apology (Oxford University Press, 2004), legal scholars are revisiting this point on the basis of studies showing that the absence of an apology itself often spurs patients to seek a lawyer and file a lawsuit. On the other hand, an apology or an expression of sorrow or regret over a patients suffering even without admitting fault can help head off a claim.

Retired ophthalmologist Merrell Oaks recalls learning this lesson as a young doctor. A former patient sued him, alleging vision loss because of malpractice, he told me. Oaks and his legal team were certain his treatment had not caused the loss. Following legal advice, Oaks never apologized or expressed remorse.

On the first day of trial, Oaks bumped into the plaintiff in a courthouse stairwell during a break. Spontaneously, he said: I just want you to know that I really feel badly about how things have worked out. I don’t feel that my treatment was responsible for what happened, but I do feel really bad about what has occurred, and I am concerned about you. The man was so moved by Oaks statement that he went directly to his attorneys and instructed them to dismiss the lawsuit.

Thereafter, Oaks followed his own legal advice. He explains: When no one apologizes or at least says they’re sorry about what has happened and its impact, this makes patients very angry because it carries the message that no one cares.

Apologies And Airplane Disasters

My law partner, employment benefits attorney Tom Kramer of Bullard Smith Jernstedt Wilson in Portland, Ore., recalls his former professor Geoffrey Hazard telling a story about the connection between defendant’s apologies and plaintiffs economic expectations.

Professor Hazard described an air crash in the Pacific that killed a number of passengers, including some Japanese nationals. After a lawsuit was filed, the defendants offered cash payments to the victim’s estates in exchange for a release of claims. With representatives of the deceased Japanese, negotiations took an unexpected turn. Instead of seeking more money, these parties sought the defendant’s apology. But the defendants resisted.

Eventually, the parties did reach agreement, with the families getting a flimsier apology than desired, but more dollars than they had asked for. The lesson: A defendant’s humble apology not only can help heal the breach but also can reduce the cost of litigation including the amount of money needed to settle.

Apologies and Employment Disputes

Conversations with a number of employment lawyers both employees and employers counsel case law research and my own experience all suggest that the apology is frequently overlooked as a means of preventing or resolving claims.

First, although there is a legal risk that a court or a jury may deem an apology to be an employers admission of fault or liability, the extent of that risk appears to be greatly overstated. Apologies occasionally contribute to employer liability; almost always, however, those cases involved botched apologies. Employer’s acknowledgments of an employees suffering, apologies for miscommunications or misunderstandings, or expressions of regret over the impact of their decisions generally have not been deemed admissions of liability.

Second, anyone who has ever been involved in employment litigation knows the critical role anger plays in stirring an aggrieved employee to file and maintain a lawsuit. The employer’s failure to apologize often fuels the employee’s outrage. Both plaintiffs and defense attorneys describe instances where they could have settled lawsuits quickly and cheaply, or averted them entirely, if the employer had acknowledged some responsibility for the consequences of its actions.

John Doran of Greenberg Traurig in Phoenix recalls defending several large age discrimination cases in which the employer had refused to apologize after several employees wrote to the CEO seeking some consolation for being summarily laid off after 30 years of faithful service. If the employer had done as requested, Doran is convinced, the lawsuits never would have happened; two of the plaintiffs specifically said so in their depositions.

Plaintiff’s attorney Lauren Scholnick of Strindberg, Scholnick & Chamness in Salt Lake City notes that an employer’s genuine, heartfelt apology frequently helps to resolve a case for much less money than the plaintiffs initially demanded or sometimes for no cash at all.

Our clients, generally, just want to feel that someone heard them and will take responsibility for what happened to them, Scholnick says. If the employer apologizes before there is even a legal proceeding of any type, the average employee won’t even make an appointment to see me.

Dos and Don’ts Of Workplace Apologies

Just as important as saying the words I’m sorry is the approach you take to workplace apologies.

Don’t justify or excuse. Have you ever been on the receiving end of an apology that began: I apologize but ? Not very satisfying, was it?

In fact, but-apologies which begin with an expression of contrition, end with justifications and excuses, and often blame the victim invariably make things worse, providing added incentive to sue. Note that the other half of the verse from Proverbs quoted at the beginning of this article is: A harsh word provokes anger.

Perhaps the most famous employment case involving a but-apology is Mackenzie v. Miller Brewing Co. According to the findings of the trial court, Miller Brewing employee Jerold Mackenzie, who previously had been disciplined for inappropriate behavior toward his secretary, described an episode of the TV show Seinfeld to a co-worker, Patricia Best. In this episode, the star Jerry Seinfeld couldn’t remember his girlfriend’s name, recalling only that her name rhymed with a female body part. But he had forgotten which part. Her name was Dolores, rhyming with clitoris, a word Mackenzie pointed out to Best in a dictionary in order to emphasize the punch line, according to published accounts of the case.

Best didn’t appreciate the humor and complained to a company officer, who attempted to have the employees themselves resolve the issue. Mackenzie apologized to Best but expressed surprise that she could have been offended given her own vulgar tongue. According to a local newspaper account, David A. Goulet, a Miller vice president at the time, testified in court that Mackenzie suggested Besting that her reaction was perhaps more of a personal problem for her than something he was responsible for.

Not surprisingly, this apology was more upsetting to Best than the original offense. She complained again, and Miller Brewing discharged Mackenzie. He, in turn, sued both Miller and Best, and obtained a jury verdict of over $26 million. After years of appellate litigation, the award eventually was overturned.

This case illustrates not only that an apology blaming the victim is worse than no apology; it also shows that management should structure and script any apology it becomes involved with. Simply hoping that the two parties in conflict will work things out by themselves can be dangerously naive.

Don’t force. Demanding an apology from an employee in inauspicious circumstances can backfire. Defense attorney Carol Zucker of Kamer, Zucker & Abbott in Las Vegas recalls a case in which an employee complained to management about her supervisor screaming profanities at her in front of co-workers, which frightened and humiliated her. After confirming the employees account by means of an investigation, management told her it would force the offending supervisor to apologize.

The supervisor apologized reluctantly and unhappily in the HR manager’s office. The employee had not requested and did not wish for an apology. She found the one offered to be offensive in itself, which heightened her fear and humiliation. The forced apology became the centerpiece of a lawsuit in which the employee obtained a jury verdict of over $400,000 against the employer and over $50,000 against the supervisor.

Does this mean that management cannot require an employee who has violated the company’s anti-harassment policy to apologize as a condition of continued employment? No, it does not. But the employer should make sure that the offending employee is prepared to commit not only to harassment-free behavior in the future but also to owning responsibility for both the current problem and its solution. That is, confirm that the employee is able to apologize in a way that does not self-justify, make excuses, blame others or appear to be insincere.

Identify undisputed points. How can an employer apologize sincerely to an employee whose own misbehavior contributed to an unpleasant outcome or where the employer needs to preserve a legal defense? Answer: Identify and apologize for aspects of the situation you don’t necessarily dispute. For example:

• A discharged employee could be told: I believe I communicated job expectations, and I’m sorry if they weren’t clear to you or if you found them confusing.

• For an employee dissatisfied with the result of an internal investigation: I understand you feel highly offended by John Does behavior. I’m sorry that our investigation was unable to substantiate your allegations, and I understand that also is upsetting to you.

• For the employee denied a promotion: I understand that you feel we made a mistake in choosing Jane Doe instead of you, and that you feel you are the most qualified person for the position. I know this is upsetting to you, and I’m sorry for that. We try to make the best choice we can under the circumstances. If it turns out we made a mistake, I apologize.

None of these apologies admit fault or legal liability, but they do display the decision-makers empathy and humility.

Focus on process, not result. Sometimes an employer can admit fault with a process even while standing behind a result. In his book, Lazare cites an example from professional baseball. Early in the 1985 season, New York Yankees owner George Steinbrenner fired team manager Yogi Berra by having one of his assistants give Berra the news over the telephone. Berra was so upset he vowed never to set foot in Yankee Stadium so long as Steinbrenner remained owner.

Matters stood this way for 14 years until Steinbrenner went to Berras home in New Jersey, looked him in the eye and said, I know I made a mistake by not letting you go personally. It’s the worst mistake I ever made in baseball. Berra responded by acknowledging that he too had made mistakes during his career.

Note that Steinbrenner did not apologize for the decision to fire Berra. But humbly acknowledging that his manner of doing it was inappropriate and unnecessarily painful made the apology effective.

Help resolve existing claims. Even when a claim already has been filed, a well-timed and well-phrased apology sometimes can go a long way toward resolving it.

Defense attorney Edwin A. Keller of Kamer Zucker & Abbott comments: We use apologies a lot during early neutral evaluation (or settlement) conferences and mediations.

When they are part of settlement negotiations or mediation conferences, apologies sometimes can be phrased more candidly than otherwise because courts usually will deem them to be privileged under federal or state law, such as Rule 408 of the Federal Rules of Evidence or its state equivalent.

That is, a party cannot use an apology made in this context against an opponent in the event the claim does not settle.

Moreover, an employer typically can include an apology as a term of the actual settlement while at the same time expressly denying liability.

The apology can be phrased in a way that does not create ammunition for other disgruntled employees.

Vet apologies with counsel and insurance providers. A note of caution for employers with employment practices liability insurance (EPLI)especially involving apologies outside the settlement privilege: Have both legal counsel and your EPLI representatives review them in advance. Most policies contain language prohibiting an employer from taking any act that might prejudice defense of the claim. Violation of that provision could cause loss of coverage.

If the employer or counsel adequately explains the nature of the apology, many insurance representatives will support actions that help settle the case quickly and cheaply.

Indeed, one senior attorney for a major national EPLI carrier observed that although insured’s must treat the prejudice issue with care, his own prior experience as a plaintiffs employment attorney taught him the strong correlation between an employers apology and avoidance or early resolution of claims.

In conclusion, the point of this article is not that apologies are risk-free. (Nor is anything else involved in managing employees in today’s legal world.) Rather, when problems surface internally, or even when they spill over into agency or court proceedings, employers should neither overlook nor summarily reject the notion of an apology as a tool to prevent or to resolve claims cost-effectively.

In short, some employers need to learn to apologize. Otherwise, they may be sorry.

Authors Note: This article is not intended as legal advice. For specific situations, consult qualified employment law counsel.

Jathan Janove is a partner in the law firm of Bullard Smith Jernstedt Wilson, with offices in Portland, Ore., and Salt Lake City. The author of Managing to Stay Out of Court: How to Avoid the 8 Deadly Sins of Mismanagement (SHRM, 2005), he defends employers and provides coaching and training to prevent claims and improve management practices. He thanks his law firm colleague attorney Peter Meyers for assisting with the research and analysis underlying this article.