Saying “I’m Sorry” is Not So Simple: Embracing the Complexity of the Apology With a New Evidentiary Rule

Amy Poyer, Pepperdine University

Abstract

Apologies are everywhere. In day-to-day life, when a person apologizes, they must deal with a myriad of consequences for that apology. These may include vulnerability to the victim, embarrassment, a bruised ago, or even rejection of the apology by the victim. However, when the wrong one apologizes for turns into a lawsuit, the one apologizing has an additional penalty. Piled on to the emotional consequences that accompany any apology, a potential defendant must also worry about his apology’s use against him in court to prove that he is liable. Recently, a debate has developed over whether or not the law should intervene to remove the fear of apologizing through enactment of an evidentiary rule to protect the apology from admissibility into evidence at trial. On the one hand, protection of the apology might increase the amount of apologies made, and in doing so, facilitate earlier settlement and overall healing of the victim, but that protection might also increase the number of strategic apologies given simply to avoid a lawsuit without suffering legal consequences for the wrong. Both of these arguments ignore the importance of what makes an apology successful. When only apologies that are most likely to succeed are protected by a new evidentiary rule, the law is able to encourage only the right kind of apologies, the kind that will be accepted and thereby can effectively promote settlement and healing.

Therefore, this Comment proposes a new evidentiary rule that protects only apologies that are the most likely to succeed given four essential elements of an apology: (1) acceptance of fault, (2) relationship between the giver and receiver of the apology, (3) form of the apology, and (4) timing of the apology. Apologies that accept fault, are given within a close relationship, are given verbally and face-to-face, and are given at an intermediate time, are the ones most likely to be successful, and by protecting only these apologies from admissibility, the law can shift to protect the right type of apology. By protecting the kind of apology most likely to succeed, the goals that lie behind the apology, namely settlement, and healing of the victim, are effectively promoted.