Will "Miss Manners" be an Expert Witness?

A law went into effect this year in California that prevents an apology for a mistake to be used as evidence of liability in a civil action. Cal.Evid. § 1160 (West 2001). Previously, a rule used in California and many other states let juries weigh an apology as evidence against a defendant.

The statute states that "statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action."

The law is careful to point out, however, that "a statement of fault" is admissible.

This action by the California Legislature was pattered after similar laws passed in Massachusetts (Mass. Gen. Laws - Ch. 233, § 23D (1986), and Texas (Texas Civ. Prac. & Rem § 18.061 (West 1999).

The Massachusetts law excludes "actions which convey a sense of compensation or commiseration emanating from humane impulses" as evidence of admission of liability in civil cases. The highest court in Georgia and Vermont made similar changes in 1992 through judicial opinions.

And now Illinois is trying to jump onto the apology bandwagon. In February, state Sen. Richard Kelmm, R, Crystal Lake, introduced S.B. 439, which is nearly identical to the aforementioned state statutes. In early March it was before the Judiciary Committee and would legislate something that the courts have routinely decided in Illinois for years.

As far back as 1912, an Illinois appellate court found that a driver’s statement more than an hour after an automobile accident "that he was sorry that it happened, but he said it would teach the boys a lesson" to stay out of the street was inadmissible. The court reasoned that this statement did not tend to prove any issue but merely served as prejudicial and passionate argument to the jury. Shaw v. Corrington, 171 Ill.App. 232 (3d Dist. 1912).

More recently, in Halleck v. Coastal Building Maintenance Co., 269 Ill.App.3d 887, 647 N.E.2d 618 (2d Dist. 1995), the court found in a slip-and-fall case at a department store that an apology by a store janitor was admissible when not offered for the sole purpose of "binding the corporation as to fault."

Courts in Illinois generally have disallowed the words to be admitted as proof of liability when uttered as merely an impulse of regret, benevolence or sympathy, reasoning that such admissions do not serve to promote offers of compromise for out-of-court settlements. Prewitt v. Hall, 113 Ill.App.2d 198, 252 N.E.2d 43 (1st Dist. 1969).

Certainly, there is a time and place for promoting civility in this world; but the courts generally have used sound discretion in determining when such statements become evidence of an admission of liability. The legislatures, though, are simply going too far in making the issue cut and dried.

Although the intentions of these legislators may be admirable, it is unfair for those wrongfully hurt by remorseful doctors, apologetic manufacturers or drunken drivers who later sober up to all be placed in the same category.

Look at the Paula Jones sexual harassment case against former President Bill Clinton. It was never about money, according to her initial lawyers in the case. Jones simply wanted an apology for his alleged conduct in a Little Rock hotel room in 1991. Jones eventually settled for $850,000 and no apology.

Or, more recently, what about the apology by Ford Motor Co. executives for the injuries and deaths caused by sport utility vehicle rollovers? Should the settlement among the parties fall apart, would these statements be exculpatory later in court?

We’ve all read about the celebrities who have demanded apologies from publications that have published slanderous stories. Some employees who have been the victims of harassment often say the actions would not have lead to litigation had only the person or company expressed remorse of some sort. You may even be aware of many insurance companies that include provisions in their policies that prohibit parties from apologizing after an auto accident.

The most common context in which apologies have been utilized appear to be in lawsuits involving doctors. The medical profession, though, has been marked by a reluctance to admit mistakes, much less to apologize.

Certainly, the fear of a lawsuit or damage to a reputation or career is a possibility. But that doesn’t mean patients don’t deserve monetary damages as well as the trust when missed or delayed diagnoses, incorrect drug prescriptions or surgical mistakes occur.

Apologies acknowledge the wrongful behavior and perhaps even send a message in the future not to commit the act again. In accepting such moral responsibility, such statements often constitute an admission; and it is best left to the courts to decide the statement’s admissibility, along with all the other evidence given the factual circumstances of the case.

A mere "I’m sorry" should not be a way to alter the legal rules of negligence or proof of causation or damage awards, as some state legislatures are attempting to do. Its social function is being confused with the clearly distinct legal function of the courts.

The civil justice system is meant to redress grievances through compensation that plays a major role in the restorative process of adjudicating actions.

Just how far will an "I’m sorry" go in correcting the consequences of a wrongful act committed toward an innocent victim? Such ethics may be important in the healing process of the physic injury, but it should not be swept under the rug in an adversarial process under the proper circumstances.