Apology privilege

TigerHawk proposes that an apology privilege be created in law, so that one could apologize to someone who felt wronged without admitting culpability under the law. TigerHawk says:

The problem, of course, is that the law burdens contrition with a significant legal cost. If you apologize, you can and will increase your liability, because the apology will be converted into evidence of culpability rather than civility. If you don't express your sorrow to an injured person, though, you both coursen our society and increase the chance that the person will become a plaintiff against you. You are damned if you do and damned if you don't. This is a ridiculous Hobson's choice, all to preserve the very dubious probative value of the apology.

Why is an apology of dubious probative value? Because in the absence of legal considerations, people apologize or express contrition or sorrow in all sorts of circumstances when they do not believe that they are actually culpable. They may do so because they want to help the victim, or because it is their habit stressful situations, or because their parents taught them to acknowledge the suffering of others. The fact of an apology in the moment of crisis or grief proves next to nothing, so justice does not benefit very much by making the apology available to the plaintiff's case.

The apology privilege, however, should extend beyond doctors to all potential defendants. As I wrote last time,

"It seems to me that we would benefit tremendously if corporations, CEOs, negligent neighbors, the local streets and sanitation department, the police, the school system, managers of playgrounds and athletic programs and the manufacturers of lawn darts all had the ability to apologize without fear that their sincere expression of remorse will expand their liability."

I also believe that there would be tremendous political power in a national apology privilege. Other than the trial bar, who could publicly object? What politician is going to vote against "saying you're sorry"? The benefits — a society in which people felt free to express their sorrow — would so outweigh the costs that every state in the country should adopt this legislation.

I don't doubt that there are an interesting number of cases where an apology would have headed off a lawsuit. And I also have no doubt that anger is a significant piece of the motivation for many, perhaps most, lawsuits. But I am very skeptical that something as simple as an apology would magically make very much litigation disappear.

A couple of reasons for my skepticism:

1. Even if someone is angry, and even if that anger was part of what motivated the lawsuit, there are still many cases where a genuine and unredressed (in the absence of litigation) harm was done. For instance, suppose the deliveryman drives his heavy truck across my yard, knocking down my fence, injuring my dog, and destroying some landscaping. I'll certainly feel better about it if the deliveryman and his company apologizes to me for the incident, but if they're not forthcoming with appropriate damages and nothing I say seems to convince them they should — well, then, I'm likely to sue them to recover my damages. Even though I got an apology.

2. Even if the law says that apologizing will not have legal ramifications, many people (I have no idea what percentage, though) simply will not apologize anyway. Most people have run into one of these stubbornly unapologetic types during their lives. Their motto seems to be "I'm right, whether I'm right or wrong." It doesn't matter one bit what the facts of the matter are, they still believe they're right, or justified, or both — and I can't imagine anything so wimpy as the lack of penalty forcing them to cough up an apology. They'd rather gouge out their eyeballs first.

So color me a skeptic. But I still like the idea, because a little more civility and a few less lawsuits is a winner no matter how you cut it. I just don't think it will be the panacea that TigerHawk thinks it will...