DRAFT – Not final version. Comments welcome. “Legislating Apology: The Pros and Cons” Jonathan R. Cohen1 University of Florida Levin College of Law August 27, 2001 ABSTRACT Should apologies be admissible into evidence as proof of fault in civil cases? The past year has seen a tremendous rise in “apology legislation” designed to exclude apologies from admissibility into evidence. For example, California passed a law in 2000 barring apologetic expressions of sympathy (“I’m sorry that you are hurt”) but not fault-admitting apologies (“I’m sorry that I injured you”) after accidents from introduction into evidence as proof of fault. Other states are now debating proposed apology legislation, including bills that would exclude fault-admitting apologies from evidence. As apologies can be central elements in preventing and settling lawsuits, such legislation has the potential to dramatically affect dispute resolution and legal practice. This Article examines policy arguments that can be made supporting and opposing such legislation and offers remaining questions for future research. 1 Assistant Professor of Law, University of Florida, Levin College of Law, Gainesville, FL. A.B., Harvard College, 1987; J.D., Harvard Law School, 1992; Ph.D. (economics), Harvard University, 1993. The Author welcomes correspondence. I thank Alison Gerencser, Wayne Hanewicz, Juan Perea, Carrie Petrucci, David Richardson and Sharon Rush for their helpful suggestions. I appreciate the research assistance of Kathleen Loftus, the secretarial support of Robyn Edwards and Marjorie Tyler, and the library research services provided by Christopher Valladingham. This Article developed from presentations at the American Bar Association Section on Dispute Resolution Annual Meeting, the Second International Conference on Therapeutic Jurisprudence, and the Yale-Quinnipiac Dispute Resolution Colloquium. Financial support was provided by the University of Florida Levin College of Law Summer Research Fund. All errors are mine alone. 1 OUTLINE Introduction I. A Brief Legal Background II. Laws Excluding Expressions of Sympathy and Benevolence III. Laws Excluding Fault-Admitting Apologies IV. Questions for Future Research Conclusion 2 “Legislating Apology: The Pros and Cons” Introduction Should apologies be admissible into evidence as proof of fault in civil cases? This question is a simple but profound one, and legislative and scholarly interest in it has recently exploded. Shortly after the idea of excluding apologies from admissibility into evidence was raised in academic circles two 3 years ago,2 it rapidly spread to the policy arena.3 For example, California enacted legislation in 2000 2 The idea of excluding apologies from admissibility into evidence was independently and contemporaneously raised by Aviva Orenstein and myself. See Aviva Orenstein, Apology Expected: Incorporating A Feminist Analysis Into Evidence Policy Where You Would Least Expect It, 28 SW. U. L. REV. 221, 237-255 (1999); Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009, 1061-64 (1999) [hereinafter Cohen, Advising]; Jonathan R. Cohen, Ethical Quandry: Advising the Client who Wants to Apologize, 5 DISP. RES. MAG. 19 (Spring 1999). The strongest critique of legislative revision is Lee Taft, Apology Subverted: The Commodification of Apology, 109 YALE L.J. 1135, 1151-54 (2000). For a recent evaluation of that debate generally supportive of revision, see Elizabeth Latif, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions, 81 B.U. L. REV. 289, 301-302, 308-310, 316-320 (2001). There has been much fine legal scholarship addressed to other aspects of apology. Several notable works are Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology, 20 L. & SOC’Y REV. 461 (1986); Peter Rehm & Denise R. Beatty, Legal Consequences of Apologizing, 1996 J. DISP. RESOL. 115 (1996); Deborah Levi, The Role of Apology in Mediation, 72 N.Y.U. L. REV. 1165 (1997); MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE 112-117 (1998); David A. Hoffman, The Use of Apology in Employment Cases, 1 PRACTICAL DISP. RESOL. 1 (1999); Daniel W. Shuman, The Role of Apology in Tort Law, 83 JUDICATURE 180 (2000); Carl D. Schneider, What It Means to Be Sorry: The Power of Apology in Mediation, 3 MEDIATION Q. 265 (2000); Jonathan R. Cohen, Apology and Organizations: Exploring An Example From Medical Practice, 27 FORDHAM URB. L.J. 1447 (2000); Carrie J. Petrucci, Apology in the Criminal Justice Setting: Evidence of Including Apology as an Additional Component in the Legal System, BEHAVIORAL SCIENCES AND THE LAW (forthcoming). Of relevance too is apology’s sometimes-reciprocating counterpart, forgiveness. See JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY (1988); Minow, supra; DIMENSIONS OF FORGIVENESS: PSYCHOLOGICAL RESEARCH AND THEOLOGICAL PERSPECTIVES (Everett L. Worthington, Jr., ed. 1998). 3 The bridge from the ivory tower to California’s legislative floor came by way of Steven Keeva’s fine article, Does Law Mean Never Having to Say You’re Sorry? 85 A.B.A. J. 64 (Dec. 1999). California Superior Court Judge Quentin L. Kopp, inspired by Keeva’s article, prompted California’s legislation. See Mark Hansen, No Hard Feelings: California Bill Would Let People Apologize After Accidents Without Setting Themselves Up for Civil Suits, 86 A.B.A. J. 28 (Aug. 2000). See also Richard C. Reuben, States Starting to Offer Legal Protection for Apology, 6 DISP. RES. MAG. 30 (Summer 2000). California’s law excluding apologetic expressions of sympathy drew upon similar bills previously passed in Massachusetts (1986) and Texas (1999). See infra Part I. However, to the best of my knowledge, the widespread discussion of such bills as apology legislation arose with the Keeva’s article and California’s law. 4 excluding from admissibility apologetic expressions of sympathy (“I’m sorry that you are hurt”) but not fault-admitting apologies (“I’m sorry that I injured you”) after accidents.4 Three other states (Connecticut, Hawaii and West Virginia) are now considering pending apology bills,5 and other states likely will follow.6 These bills vary significantly. Connecticut’s proposed legislation would exempt not only apologetic expressions of sympathy but also fault-admitting apologies from admissibility following accidents 7. Hawaii’s proposed legislation would remove the restriction “following accidents” and exclude all apologies, including fault-admitting apologies, regardless of the cause of action. This would cover civil claims for both unintentional and intentional injuries.8 Though such bills may at first appear mere modifications of the states’ evidence codes, such “mere modifications” may indeed be revolutionary. As apologies can be central elements in preventing and settling lawsuits and as apologies 4 See infra Part I. 5 Id. 6 See, e.g., Jan Eric Peterson, President of the Washington State Bar Association, Why Not Say “I’m Sorry”, WASH. ST. BAR NEWS 5 (May 2001) (“I propose the following [ammendment to the Washington State Evidence Rules]: Evidence of an apology or benevolent gestures of sympathy are not admissible to prove liability or fault for, or invalidity of, a claim of civil wrong.”) (emphasis original); NEW JERSEY LAW JOURNAL (Jan. 15, 2001), Editorial: The Role of Apology (“[W]e should consider re-writing the rules of evidence to exclude some apologies from the admissions-by-a-party-opponent doctrine.”). See also infra note 52 (describing proposed legislation introduced in Florida that died on the house calendar). The debate concerning the interaction between apology and the legal system has reached Canada as well. See, e.g., Susan Alter, Apologizing For Serious Wrongdoing: Social, Psychological and Legal Considerations, (Final Report for the Law Commission of Canada, May 1999). 7 See infra Part I. 8 See text at infra note 58. 5 are often not offered after injuries, in part from the fear of liability, rules barring apologies from admissibility have the potential to profoundly alter dispute resolution and legal practice.9 Few other “small revisions” to our evidence codes could so dramatically transform the legal landscape. The goal of this Article is to present the pros and cons of such legislation, that is, policy arguments that can be made supporting and opposing such legislation. As with most issues of substance, sound arguments exist on both sides. While I have supported the effort to advance such legislation,10 and while my proclivity toward such legislation may occasionally show through, my purpose here is not that of advocacy but of analysis. I present what I see as the best arguments for and against such legislation and leave it to others to judge the merits of those arguments. I do this for two reasons. First, to the best of my knowledge, the arguments supporting and opposing such legislation, as well as the areas of uncertainty concerning such legislation, have not been systematically presented. I hope that this Article may assist those assessing pending legislation or drafting future legislation. Second is the matter of scholarly interest. Although the initial question of whether apologies should be admissible into evidence as proof of fault in civil cases is simple, it implicates a fascinating array of legal, ethical, psychological, economic, and even cross-cultural issues. Consider a few representative questions. (Law) How would an apology exclusion compare to existing evidentiary exclusions for subsequent remedial measures and statements made during settlement negotiations? (Ethics) If an injurer is truly sorry, why shouldn’t his apology be used against him in court? Doesn’t 9 See infra Parts III, IV. 10 See, e.g., my remarks praising California’s law for excluding apologetic expressions of sympathy but critiquing it for not also excluding fault-admitting apologies in Hansen, No Hard Feelings, supra note 3. 6 being sorry mean taking responsibility, including paying, for what he has done? (Psychology) How does an apology, or the lack of an apology, affect the injured and the injurer? (Economics) While doctors who make mistakes often don’t apologize for fear that the apology will be used against them to prove liability, many patients who sue their doctors say they would not have sued if only the doctor had apologized. Could excluding apologies from admissibility help avoid this vicious cycle? (Cross-cultural studies) In Japan, apologies after injuries are highly typical and lawsuits highly atypical. Could the U.S. emulate the Japanese approach? This Article does not aim to fully resolve these specific questions. Rather I hope the reader will have gained a taste of the interdisciplinary issues involved. This Article proceeds as follows. Part I provides a brief background on existing evidentiary rules and pending legislation related to apology. Part II examines the pros and cons of laws like California’s that exclude apologetic expressions of sympathy, but not fault-admitting apologies, following accidents from evidence to prove liability. Part III examines laws that would exclude fault- admitting apologies following either unintentional or intentional injuries. Part IV presents questions for future research. A few words on this Article’s scope may be in order at the outset. This Article examines apology legislation in the civil, rather than the criminal, setting.11 This is not to say that apology has no place in criminal cases. Apology’s potential within the criminal setting may well exceed that within the civil setting. From the viewpoints of morality and psychology, the more serious the harm, the greater 11 For a fine sociological analysis of the use and potential of apology in the criminal setting, see Petrucci, supra note 2. 7 the need for an apology. Further, while apologies have long influenced criminal sentencing,12 the use of apology in ordinary criminal cases appears to be growing both domestically and internationally,13 particularly within victim-offender mediation programs.14 Apology is even playing an increasing role in 12 Apologies have long had their place within the formal criminal system, where following conviction but prior to sentencing, defendants often apologize. Some criminal sentencing guidelines explicitly make the defendant’s remorse a factor for consideration. See, e.g., 18 USCS Appendix Section 3E1.1 (2000) (“If the defendant clearly demonstrates acceptance of responsibility for his offense, [his sentence shall be decreased two levels.]”) Such remorse, however, must be perceived to be sincere. See, e.g., United States v. Camargo, 908 F.2d 179 (7 Cir. 1990) (sentence reduction denied where defendant’s apology was “a calculated simulation of remorse.”) See generally ROGER W. HAINES, JR. ET AL., FEDERAL SENTENCING GUIDELINES HANDBOOK (2000), at 859 n. 605. The widespread practice of plea bargaining also involves an admission of fault, though not necessarily an expression of remorse, by the defendant. 13 On the growth of victim-offender mediation programs (“VOMP’s”) internationally, see Umbreit, THE HANDBOOK OF VICTIM OFFENDER MEDIATION xlv (2001)(describing over 1,300 programs in seventeen countries) and at 179-193 (focusing on the US, Canada, and England); RESTORATIVE JUSTICE: PHILOSOPHY TO PRACTICE (Heather Strang & John Braithwaite, eds., 2000) (analyzing particularly New Zealand’s extensive experience); David B. Moore, Shame, Forgiveness and Juvenile Justice, 12 CRIM. JUS. ETHICS 3, 6 (1993); Carol LaPrairie, Developments in Criminal Law and Criminal Justice: Conferencing in Aboriginal Communities in Canada—Finding Middle Ground in Criminal Justice, 6 CRIM. L. F. 570, 584 (1995) (same for aboriginal communities in Canada). For a philosophical analysis of apology within the restorative criminal settings, see R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 92-96, 105-115 (2001). 14 For an overview of VOMP’s, see generally MARK S. UMBREIT, VICTIM MEETS OFFENDER: THE IMPACT OF THE RESTORATIVE JUSTICE MOVEMENT; MARK S. UMBREIT, THE HANDBOOK OF VICTIM OFFENDER MEDIATION, supra note 13. Apologies are often centerpieces of such mediations. In a study of VOMP’s in four American cities, Umbreit found that 70% of victims considered receiving an apology an important issue before the mediation, and 78% after the mediation. This was higher than the percentages, 66% and 71% respectively, for those who considered receiving restitution an important issue. Offenders too (88% pre-mediation, and 89% post-mediation) felt apologizing to the victim was an important issue. UMBREIT, VICTIM MEETS OFFENDER, supra at 72-73. For a critique of VOMP’s, see Jennifer Gerarda Brown, The Use of Mediation to Resolve Criminal Cases: A Procedural Critique, 43 EMORY L.J. 1247 (1994). While VOMP’s commonly handle minor crimes, often by youths, they have been applied in cases as extreme as murder. For a powerful documentary of an apology by a convicted murdered to the victim’s mother within a VOMP, see My Daughter’s Killer (CBS television broadcast on “48 Hours”, Feb. 4, 1999). See also Schneider, supra note 2 at 8 responding to gross human rights violations. (Compare the recent approach of the South African Truth and Reconciliation Commission, where amnesty was granted upon a full confession, with the prosecutorial model of the Neuremberg a half-century ago.15) However, this Article focuses on the civil setting. There are several reasons for this. Both the existing legislation and the proposed legislation address only the civil setting. This is in contrast to most American evidence law which draws no distinction between civil and criminal cases.16 Further, criminal charges are brought by the state rather than the injured person. If the offender apologizes to the injured party in a civil case, this means that the defendant has apologized to the plaintiff. In a criminal case, that correspondence is severed. Criminal cases also present a risk of coerced confessions. As reflected in the fifth amendment right against self- incrimination, constitutional law has long been wary of the potential for the state to abuse its power and coerce confessions, both false and true.17 Civil cases typically pose little risk that a plaintiff could 271- 273 (describing the apology within a VOMP by an attacker to the man he shot and seriously wounded). 15 See Minow, supra note 2, at chs. 3, 4. 16 Though particular rules evidence differentiate between civil and criminal cases (see, e.g., FEDERAL RULE OF EVIDENCE 412(a) and (b)), most rules of evidence do not distinguish between these settings. Contrast this with the bifurcated FEDERAL RULES OF CRIMINAL PROCEDURE and the FEDERAL RULES OF CIVIL PROCEDURE or the separation between American criminal and civil law generally. 17 As Justice Frankfurter expressed, involuntary confessions are excluded, “not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system – a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.” Rogers v. Richmond, 365 U.S. 534, 540-541 (1961). See generally MCCORMICK, ON EVIDENCE, ch. 13 (5th ed. 1999). 9 coerce a confession from the defendant. In the criminal setting, where the state arrests, prosecutes and incarcerates, that risk is quite real. This Article also does not address public, political apologies that also have recently mushroomed in which the state or other entity apologizes for some past or current wrong, such as the U.S.’s apology for the internment of Japanese Americans, Pope John Paul II’s apologies for various sins committed by the Catholic Church over the past millennium, the Chinese government’s demand that U.S. government apologize following a recent air collision off Chinese waters, and African-American calls for an apology for slavery.18 Although the rise of such public, political apologies and the rise of apology legislation for “ordinary” civil cases discussed here may not be coincidental, such public, political apologies implicate distinct issues. As this new apology legislation may generate major changes in dispute resolution and legal practice, fully evaluating its evolution and impact must ultimately await history’s judgment. How these laws will develop and what social changes they will produce is uncertain. This does not mean that the pros and cons of these new laws should not be considered at the time of their making. Rather we must 18 On the rise of such public, political apologies nationally and internationally, see generally Eric K. Yamamoto, Race Apologies, 1 J. GENDER RACE & JUST. 47 (1997); Minow, supra note 2, at 91- 117, Richard L. Abel, SPEAKING RESPECT, RESPECTING SPEECH 264-267. Also of relevance to such cultural transition are JAMES B. TWITCHELL, SHAME: THE LOSS OF COMMON DECENCY IN AMERICAN CULTURE (1997); PETER BROOKS, TROUBLING CONFESSIONS: SPEAKING GUILT IN LAW AND LITERATURE (2000). Regarding specific apologies, see, e.g., ERIC K. YAMAMOTO ET AL., RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT 399-401 (2001)(U.S. apology for Japanese American internment); LUIGI ACCATTOLI, WHEN A POPE ASKS FORGIVENESS: THE MEA CULPA’S OF JOHN PAUL II (Jordan Aumann, trans., 1998) (Catholic Church’s various apologies); Elisabeth Rosenthal, Collison with China: Reaction in China, N.Y.TIMES, April 13, 2001 at A11 (U.S.-China incident); RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS 213 (2000)(demanding reparations, including an apology, for slavery). 10