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Apologies and Legal Settlement

The empirical studies described here explore the proposition that apologies facilitate the settlement of civil disputes either by increasing potential plaintiffs’ inclination to accept a particular settlement offer or by altering parties’ perceptions and attributions in ways that might smooth the progress toward reaching a mutually satisfactory settlement agreement. More specifically, these studies explore the differing ways in which apologies are perceived and responded to when crafted to better insulate the offeror from legal liability (e.g., expressions of sympathy and statutorily protected apologies). This research suggests that an apology may favorably impact the prospects for settlement but that attention must be paid to both the nature of the apologetic expression and the circumstances of the individual case.

citation:

Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460 (2003).

Apologies and Plea Bargaining

Theoretically, encouraging apologies early in the criminal process may be a laudable goal given the potential benefits of apologies to victims, offenders, and communities. But empirically, the growing literature on apologies in psychology and law raises important questions about whether apologies-when made prior to sentencing-would lead to more favorable results for the offender. Given the overwhelming portion of cases that are resolved through guilty pleas, we argue that most defendants are unlikely to participate in pre-sentencing remorse or apology rituals without regard to the effect of the apology on plea bargaining outcomes. Mindful of recent scholarship on apologies in both law and psychology, we consider the role of apologies in plea bargaining and theorize about the ways in which apologies might affect plea negotiations. We conclude that, contrary to the assertion that apologies would lead to more favorable plea bargained outcomes for defendants, the nature of plea negotiation renders this result unlikely.

citation:

Margareth Etienne & Jennifer K. Robbennolt, Apologies and Plea Bargaining, 91 Marq. L. Rev. 295 (2007).

What We Know and Don’t Know About the Role of Apologies in Resolving Health Care Disputes

The role of apologies in resolving all types of civil disputes has received growing attention. While apologies may well play a role in resolving civil disputes generally, they may be particularly relevant in the health care setting—a setting in which the parties are in a relationship that necessitates a high degree of trust and intimacy. Much of the discussion of how apologies might be beneficial in resolving health care disputes has been based primarily on intuition and incomplete empirical data. This Article attempts to review what is known and not known about apologies in this context. After briefly reviewing, in Part I, some recent legislative developments regarding disclosing and apologizing for medical errors, Part II describes what is known about apologies in health care disputes. This Part brings together and examines a variety of empirical data—from surveys, experiments, and case studies—that bear on the role of apologies in health care settings. Part III draws attention to avenues of further research.

citation:

Jennifer K. Robbennolt, What We Know and Don't Know About the Role of Apologies in Resolving Health Care Disputes, 21 Ga. St. U. L. Rev. 1009 (2005).

The Role of Apology in Negotiation

Is “I’m sorry” the hardest phrase to say? Does it matter whether you mean it? This essay examines the critically important issue of apology, and how and when an apology can be helpful or harmful in a negotiation. Reviewing the latest empirical work, the authors discuss the purpose, type and timing of an apology, to ensure that any apology given accomplishes its goals.

 

citation:

Jennifer Gerarda Brown & Jennifer K. Robbennolt, The Role of Apology in Negotiation, in The Negotiator's Fieldbook 425 (Chris Honeyman & Andrea Cupfer Schneider eds., 2006).

Apologies and Settlement Levers

This study uses experimental methods to explore the role of apologies in legal settlement negotiation. Specifically, the study examines the influences of apologies on disputants’ perceptions, and the effects of apologies on a number of judgments that influence negotiation outcomes— settlement levers such as reservation, aspirations, and judgments of fair settlement amounts. Five-hundred-fifty-six participants were asked to take the role of potential plaintiffs, to provide their reactions to an experimental scenario, and to indicate the values they would set for each settlement lever. The nature of the communication with the offender and the description of the evidentiary rule governing the admissibility of the offender’s statement were manipulated. The data suggest that apologies can promote settlement by altering the injured parties’ perceptions of the situation and the offender so as to make them more amenable to settlement discussions and by altering the values of the injured parties’ settlement levers in ways that are likely to increase the chances of settlement. The results suggest further, however, that the nature of the apology itself, as well as the factual circumstances surrounding the incident, may play important roles in how apologies are understood.

 

citation:

Jennifer K. Robbennolt, Apologies and Settlement Levers, 3 J. Empirical Legal Stud. 333 (2006).

Apologies and Civil Justice

This chapter explores the state of the empirical research on the role of apologies in the context of civil litigation with an eye toward suggesting avenues of future research. First, psychological theories that contribute to an understanding of how and why apologies influence judgments and decision making are explored. Apologies may influence a range of legally related judgments as they provide assurance that the offender will not re-offend, express the proper relative moral positions of the parties, provide positive information about the injured party’s social identity, influence emotional reactions, trigger social conventions, and change expectations about legal entitlements. Second, studies that have specifically examined the role of apologies in civil litigation are reviewed. Third, a number of variables that may moderate the effects of apologies on legal decision making are explored. And, finally, avenues for future research are suggested.

citation:

Jennifer K. Robbennolt, Apologies and Civil Justice, in Civil Juries and Civil Justice: Psychological and Legal Perspectives 195 (Brian Bornstein et al. eds., 2007).

Attorneys, Apologies, and Settlement Levers

This paper empirically explores how attorneys respond to apologies offered in litigation as they advise claimants about settlement, and compares the reactions of attorneys to those of lay litigants. While there is evidence that apologies influence claimants in ways that are likely to make settlement more likely, the research presented here demonstrates that attorneys react differently to apologies than do claimants. While attorneys understand the information conveyed by apologies in ways that are strikingly similar to claimants, attorneys’ judgments about settlement when apologies are offered diverge from those of claimants. The paper explores the implications of these effects for attorneys counseling clients in cases in which apologies are offered or desired and for the role of mediation in resolving disputes.

citation:

Jennifer K. Robbennolt, Attorneys, Apologies, and Settlement Negotiation, 13 Harv. Negot. L. Rev. 349 (2008).

Apologies and Medical Error

One way in which physicians can respond to a medical error is to apologize. Apologies—statements that acknowledge an error and its consequences, take responsibility, and communicate regret for having caused harm—can decrease blame, decrease anger, increase trust, and improve relationships. Importantly, apologies also have the potential to decrease the risk of a medical malpractice lawsuit and can help settle claims by patients. Patients indicate they want and expect explanations and apologies after medical errors and physicians indicate they want to apologize. However, in practice, physicians tend to provide minimal information to patients after medical errors and infrequently offer complete apologies. Although fears about potential litigation are the most commonly cited barrier to apologizing after medical error, the link between litigation risk and the practice of disclosure and apology is tenuous. Other barriers might include the culture of medicine and the inherent psychological difficulties in facing one’s mistakes and apologizing for them. Despite these barriers, incorporating apology into conversations between physicians and patients can address the needs of both parties and can play a role in the effective resolution of disputes related to medical error.

citation:

Jennifer K. Robbennolt, Apologies and Medical Error, 467 Clinical Orthopaedics & Related Res. 376 (2009).

Apologies and Settlement

Review of the empirical research on the influence of apologies on claimants, attorneys, and judges in civil cases.

citation:

Jennifer K. Robbennolt, Apologies and Settlement, 45 Court Rev. 76 (2010).

Apologies and Reasonableness: Some Implications of Psychology for Torts

One does not need to think long about the range of situations that are addressed by tort law to realize that tort law implicates any number of questions about human behavior and decision making. Some of these questions focus on tort doctrine; others center on how tort lawsuits are brought, handled, and ultimately resolved. As a “hub science” with a particular focus on human behavior, psychology has much to offer that is useful for understanding these questions. Some psychological findings-primarily the literature on heuristics and biases-have already made their way into discussions of tort law and are taken into account with increasing frequency. Links between tort questions and other areas of psychology have not been as carefully developed. This Article, highlights just two examples of the ways in which psychological research has informed our understanding of tort law and practice: research on the role of apologies in civil cases and research that has complicated our understanding of the “reasonable person” in tort.

citation:

Jennifer K. Robbennolt, Apologies and Reasonableness: Some Implications of Psychology for Torts, 59 DePaul L. Rev. 489 (2010).