Sorry may be the hardest word, but is it legal?
As children, we’re taught that if you do something wrong, you’re supposed to apologize. For some people, though, it’s not just a suggestion, it’s the law. According to a recent Law.com post, Ontario recently became the fourth Canadian province to enact “apology legislation.” Law.com also reports that most Australian states and more than 30 states in our own country have similar legislation.
The Act provides that an apology, made by or on behalf of a person, does not constitute an admission of fault or liability by the person and is not admissible in any civil or administrative proceeding.
That being said, I still wouldn't advise a client to apologize before a case has been tried or resolved (even if there were such an act in NY and CT -- and I haven’t checked to see if there is). I would not take the suggestion in the Law.com post to use the apology as a dispute resolution tool - - at least not while a trial or hearing may be in the parties’ future.
My reason is related to the old trial lawyer’s cliché: you can’t unring a bell. I was watching an old Jimmy Stewart movie, “Anatomy of a Murder.” Stewart plays the defense lawyer. Over and over he says something he shouldn’t, and the judge tells the jury to disregard it. Ben Gazzara’s character, the accused, asks him, “Can they really disregard it?” And the Stewart character casually says, “Of course not.”
My point is, once you’ve apologized and it becomes public, act or no act, how can anyone disregard the apology, or not "take it into account"? Judges and juries are human.
We don’t practice in medical malpractice or personal injury where, according to Law.com, there is a lot of interest in this "tool." There is, however, one aspect of this issue that is of some interest to me: should an apology be part of a settlement (after the parties have given each other releases from liability)? How often I hear, “It’s not the money, it’s the principle.” If that’s the case, I would ask, will you settle if I can get you only an apology and no money?
That situation, to me, is different from one in which the apology might precede a trial or hearing. Of course, it would take some negotiating skill to suggest an apology can be part of a settlement without admitting an apology is in order.
The growth of this legislation shows its increasing popularity. However, in my own experience, I don’t think such an act can be very effective.
Let us know what you think.
(not a legal document)
