KNOWING WHEN TO EAT CROW: APOLOGIES IN LITIGATION

Bad facts exist in every case. Particularly in this day and age when everything electronic has a footprint, a cringe-worthy document is bound to pop up. A client attorney of ours once referred to email as “the cockroaches of litigation” – they’re lurking in every case.

So if you can’t avoid bad facts, what do you do about them? Use them to your advantage. Sometimes falling on your sword will go a long way to gain credibility with the jurors.

There is certainly a fine line to walk when it comes to apologizing in a legal setting. Apologies can backfire if they come across as disingenuous or self-serving. Take Larry Nassar’s awkward apology in January of this year to the 265 women who he sexually abused over decades under the guise of medical treatment. Or, in mid-March, the CEO of Facebook, Mark Zuckerberg, said he is, “really sorry that this happened” regarding a data breach at Facebook by Cambridge Analytica of 50 million Facebook users. Some offenses are so egregious, “sorry” barely scratches the surface.

That being said, apologizing in the “right way” can serve to greatly increase credibility, and can even lead to an amicable resolution of the case. Some researchers have found that apologizing can be effective in mitigating damages in certain types of civil cases, and victims often want apologies in criminal cases.[1] Attorneys often instruct their clients not to apologize until after the liability phase of a case, so as not to infer wrongdoing. Yet many states have laws protecting people from their apology being used against them in court if the case makes it to trial, and apologies can facilitate the likelihood of settlement.

But because apologizes often cannot be made outright during trial, there are ways to express remorse, or even to “eat crow” on certain lines of questioning, in order to enhance credibility for the even less savory topics.

Take, for example, a plaintiff in a case we worked on. The plaintiff was claiming whistleblower status for informing management that he was being asked to fabricate invoices. Through the course of litigation, the defense found out he had lied on his employment application in a significant way – education was enhanced and some work history was completely fabricated. When asked about this directly in deposition, he danced around the topic, saying he “did not remember” so couldn’t answer the questions. Even though this had nothing to do with his whistleblower status, his credibility was damaged, and therefore he was less likable and trustworthy when it came to the claims relevant to his case.

In another case, there were a string of emails that just looked bad for the defense. It seemed as though the employees weren’t taking the issue seriously throughout the investigation. Even though the investigation technically went off without a hitch, the tone in the emails were such that it could have ruined the credibility of the defense witnesses.

Learning when and on what topics to apologize can be an extremely fine line to walk, and there is no black and white rule to help in this decision. If it is something too significant, it won’t serve to enhance credibility at all – only to paint a broad brush of the witness as to their overall character. However, if there are bad facts in evidence that have nothing to do with the claims, the witness could and should show remorse for those things. Then it becomes the attorney’s job to show the jury why the admissions are actually a red herring, and have nothing to do with the questions at hand.

In terms of the nonverbal components (body language and vocal tone), sounding sorry and looking sorry are as important as saying sorry. This is easier said than done. Nerves or even the fear of not sounding genuine can – ironically – increase the chances of not sounding genuine. During trial, expressing remorse through body language and tone may be the best option for a witness who cannot directly express an apology on the stand. That being said, if a witness does not seem remorseful, it could be because they’re not. Forcing an apology from someone who isn’t truly sorry will come across as canned.

Saying sorry in the “right way” can be extremely powerful. However, any misstep, even minor, can backfire, sending the credibility of the witness careening to rock bottom. Work to find the happy medium, where jurors learn the witness is capable of remorse to earn credibility points for bad facts.

[1] Apologies in medical malpractice cases have not been found to reduce risk of liability. This may be because in these types of cases, someone is almost always physically injured, as opposed to damaged in some monetary or psychological way.