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A CIVIL ACTION: IS THERE ROOM FOR APOLOGY IN THE
ADVERSARY SYSTEM?
by Justyna Herman
After practicing law as a civil
trial lawyer for twenty years, Lee Taft, the former dean of the
Harvard Divinity School, came to the conclusion that something
must be missing in our system of law because even after successful
settlements, the wronged clients are not satisfied with the outcome.
In his essay entitled "Apology Subverted: The Commodification
of Apology,"(1) he states that
what he realised after all his years in practice in the field
of injury law is that people need meaningful apology from the
wrongdoers in order to fully recover from the inflicted wrongs.
This realisation came to him after he handled a medical malpractice
case. A young widow was left with small children and scarce resources
because of the negligence of doctors in handing her husband's
illness. This widow was extremely disappointed that none of the
doctors that contributed to the agonizing death of her husband
came forward with an apology. To her, this was a moral harm,
another injury that was added to the malpractice.
 A similar thought
is presented in the 1998 movie A Civil Action, directed
by Stephen Zailian and based on a best-selling book by Jonathan
Harr under the same title. The portrayal of justice that the
movie conveys is not just the stereotypical or deformed depiction
of the legal profession and the legal system that Hollywood movies
tend to portray. Instead, the movie seems to suggest that in
our adversary system of law, where two opposing sides fight with
the sole intention to win, there is no place for apology. This
contention has a strong resonance not only in legal philosophy
but also among lawyers.
A Civil Action depicts a civil lawsuit that takes place
in the United States. The lawsuit is filed by residents of a
small town, Woburn, in Massachusetts, against two powerful corporations,
Beatrice Foods and W.R. Grace, for polluting the water in the
local river and causing the deaths of many children. The plaintiffs'
legal representation is a small law firm specializing in personal
injury law. On the opposite side, two big and powerful Boston
law firms employing Harvard graduates and professors represent
equally powerful and rich defendant corporations.
Not surprisingly, the small law firm runs out of resources and
puts its partners and employees on the verge of bankruptcy. The
Woburn case proves to be extremely expensive; it gets out of
hand and has to enter the court system because the parties can't
agree on a settlement and their negotiations prior to trial are
highly unsuccessful. The goal of the small law firm and Jan Schlichtmann,
who is actively defending the interests of his clients, is to
reach settlement and avoid trial. Schlichtmann's tactic - to
extract as much money as possible from the big corporations before
the trial - is simple in that he believed that the big corporations
would want to settle the issue quickly and without much attention
because of the fear that a trial would attract too many litigants.
Another reason for Schlichtmann's tactic is that he thought that
the corporations would want to avoid the trial because they wouldn't
want the jury to be able to hear emotional testimony from the
plaintiffs whose children died because of the polluted water.
Unfortunately for Schlichtmann, his law firm and his clients,
the corporations' counsel don't take Schlichtmann's bait. Instead,
they decide to go to trial with the intention of never having
to listen to the testimony of the parents about the agonizing
deaths of their children, which could potentially cost them a
lot of money. The big corporations win on this issue and the
judge decides to put to the jury three questions of a complicated,
technical nature in order to resolve the case. The jury finds
in favour of Beatrice Foods, but finds W.R. Grace guilty.
The methods that the defendants resort to in running this trial,
including their mischievous defence tactics and manipulations
of the judge, show that the adversary system is an enemy of truth
finding. One of the reasons that Schlichtmann loses the trial
and fails at the negotiations with W.R. Grace after the trial
is that he underestimates the intellect and cunningness of the
opposing counsel. What this movie seems to be saying, however,
is that the most important reason that Schlichtmann loses is
because he doesn't listen to his clients. From the beginning
of the movie it is clear that all that the plaintiffs want is
an apology from the big corporations. Schlichtmann either doesn't
seem to listen, because he is putting his sights on the big compensation
that he wants for his clients and for himself, or he simply disregards
the wishes of his clients because he knows that there is absolutely
no room for apology in the adversary system. Possibly, the concept
of apology in the adversary system is either beyond grasp or
just doesn't exist.
Carl Schneider writes (2) that there
are three elements of apology: acknowledgement, assent, and vulnerability.
Without any of those elements, there is no true apology. Similarly,
Nicholas Tavuchis outlines (3) the foundation
for a true apology as consisting of three steps: the offender
must be able to name the offence, then the offender has to admit
fault and, finally, express remorse for the result of his or
her act and the harm it caused. The remorse and regret necessarily
include willingness to change on the part of the offender and
agreement to accept all consequences. By looking at all the requirements
of apology, it becomes obvious that there is an important moral
quality in apology. Taft says that "[a]pology is moral because
it acknowledges the existence of right and wrong and confirms
that a norm of right behaviour has been broken. It is moral (…)
because the person who apologises also exposes himself to the
consequences of his wrongful act." (4)
Seeing as apology is such an onerous course of action, it is
of no surprise that apology is avoided in the adversary system.
Lazare says (5) that "the greatest
impediment to apology is a pervasive cultural attitude that views
apology as a weakness, an emotional expression antithetical to
traditional American values of autonomy and independence."
Another impediment that is especially significant in a litigation
context is the perception that apology is, as a matter of fact,
an admission of guilt. This is critical in litigation, as admission
of guilt can jeopardise defence in a court case. Defendants are
discouraged from apologising because if they do, they automatically
put the blame on themselves and, as a consequence, they close
the door to a fair trial or fair sentencing by an objective (in
theory) trier of fact because, by apologising, the defendants
convict themselves and let the plaintiffs sentence them. Moreover,
apologising before trial can potentially open the door to an
unlimited number of litigants claiming the same harm as was inflicted
upon the plaintiffs.
Some lawyers (6) admit that apology
is important and should be encouraged. However, what they often
advocate is a modified apology, such that it avoids the admission
of wrongdoing. An infamous example of this type of apology is
one made by President Nixon, who said: "I regret deeply
any injuries that may have been done in the course of events
that have led to this decision. I would say only that if some
of my judgments were wrong, they were made in what I believed
at the time to be in the best interest of the nation."(7) What makes this apology unsuccessful
is that it doesn't include the important elements of apology
such as acknowledgement of wrongdoing. What aggravates the situation
even more is that Nixon asserted that the wrong was done for
a greater good. Even though this type of apology is widely practiced
every day, it is by no means a successful apology. Therefore,
the existence of two types of apology, one true one and one that
is missing the central element of acknowledgement, poses a difficult
dilemma for the adversary system. Accepting the former type means
foregoing the court system. Deciding to settle for the second,
defective one may result in a successful court action, but it
will never satisfy the harmed plaintiffs. This dilemma is portrayed
in A Civil Action. The defendants do not want to apologise
or even settle the case out of court by paying out compensation
to the harmed parents because of the fear of opening the floodgates
of litigation.
Anne Anderson, the spokeperson for the plaintiffs, tells Jan
Schlichtmann that she only wants an apology from the defendants.
In response to that, Jan says that corporations apologise with
money. To Anne, this is simply not enough. She wants somebody
to acknowledge the harm that was done to her family and to other
families in Woburn. Unfortunately, there is no one forthcoming
with an apology but Jan. However, Jan doesn't seem to understand
Anne's desire for an apology. His apology to her is not only
unsuccessful, but adds further insult to Anne's injury. What
this illustrates is that for Jan, a lawyer, apology is not natural
in litigation. What is natural for Jan is that defendants have
the right not to incriminate themselves and to defend themselves
as best as they can. Plaintiffs, on the other hand, have the
right to pursue compensation, which is the most prevalent method
of reimbursement for the suffered wrongs.
While Anne's quest for apology can be perceived as a tactic to
avoid having to put a price on the lives of children in her community,
it is a perfectly good response for somebody who is not money-oriented
and refuses to acknowledge and agree with the compensatory aspect
of law. It could be argued that she is forced to enter the court
system because this is the only way that big corporations will
notice a claimant. Therefore, even though the plaintiffs decide
to go to court, apology might really be what the plaintiffs want.
A recent newspaper article confirms this proposition:
"[apology is] a surprisingly powerful way to soothe patients
and head off malpractice lawsuits. The hospitals in the University
of Michigan Health System have been encouraging doctors since
2002 to apologize for mistakes. This system's annual attorney
fees have dropped from $3 million (U.S.) to $1 million, and malpractice
lawsuits and notices of intent to sue have fallen from 262 filed
in 2001 to about 130 per year".(8)
In spite of all this, Anne's
extraordinary request for apology may seem daunting, especially
in the face of the enormous amounts of money in legal bills that
she and other families owe to Jan for taking on the case. Because
Jan's firm practiced collecting on the payment from successful
settlements or rewards, surely it was impossible for Jan to pay
off the debts that his firm incurred with an apology from the
defendants.
A scenario like that would only be possible if Jan's firm had
plenty of resources and took the case pro bono, thereby not expecting
compensation. This is not to say, however, that apology is only
possible in the case of wealthy law firms who take on cases pro
bono. Rather, it is to show that while it is a recognized practice
in our legal system that people are to be compensated with money
for deaths, misfortunes and harms, it is a legitimate expectation
on their part to also expect that the party who harmed them acknowledges
the harm. Whether the harmed party wants monetary compensation
or not, apart from wanting apology, A Civil Action seems
to be saying that apology is not possible in the adversary system.
What A Civil Action is saying, however, might not be correct
in all situations. Even though the situation shown in the film
is not likely to yield an apology, in some situations, such as
medical malpractice, there would appear to be a place in the
legal system for an apology. In other situations, as in the corporate
case depicted in the film, which involves a corporation and not
one individual who has committed the wrong, a faceless company
in other words, a meaningful apology may not be very likely to
take place or be very feasible. After all, the heads of a corporation
have a responsibility to their stockholders to guard the financial
well-being of the company and should try to protect those interests
whether they are right or wrong, lest the stockholders have to
pay the financial price for their mistakes. Moreover, apology
in the cases of medical malpractice, like the one described by
Lee Taft or The Globe and Mail piece might not pose the issue
of opening the floodgates because a negligent doctor usually
harms only one person, the patient.
Court processes don't encourage meaningful apologies. Rather,
it is clear that there is little room in the court system for
apologizing because it may be treated as an admission of guilt
which, in turn, may easily lead to a finding of liability. This
is very unfortunate, because it is natural for people to expect
an apology for the inflicted harm. Inasmuch as this can be achieved
in out-of-court reconciliation processes, such as mediation,
it cannot be done in the adversary system because of the risk
of creating prejudice against the defendants and thus denying
them the right to a fair trial. While defendants can be encouraged
to apologise for wrongs as a means for avoiding trial altogether,
as the above The Globe and Mail article suggests, the defendants
are placing themselves in a vulnerable position. A Civil Action
illustrates this problem all too well.
1. Lee
Taft, "Apology Subverted: The Commodification of Apology."
(2000) 109 Yale L.J. 1135.
2. Carl E. Scheneider, "What it means to be sorry: the power
of apology in mediation." (2000) 17 Mediation Quarterly
265.
3. Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation
(Stanford: Stanford University Press, 1991)
4. Taft, supra note 1 at 1142.
5. Aaron Lazare, "Go Ahead Say You're Sorry" Psychology
Today (Jan-Feb 1995) 22.
6. Marshall H. Tanick & Teresa J. Ayling " Alternative
Dispute Resolution by Apology: Settlement by saying I'm Sorry"
The Hennepin Lawyer 65(6) (July-Aug 1996) 22.
7. "Richard's
Nixon Resignation"
8. Michael Kesterton, ed. "Social Studies: A Daily Miscellany
of Information by Michael Kesterton. Sorry doctors." The
Globe and Mail, Wed. Nov 17/2004.
Posted January 20, 2005
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