Apology and Legal Liability

Legal and Psychological Implications of Apologizing

When I was little, I was taught to say I was sorry if I did any number of bad/dumb/stupid/wrong/etc. things. An apology was the necessary ingredient to bring a relationship back to square one. As a leader, I see this kind of crazy reality which says if you apologize for something, you are admitting responsibility, and you could be legally liable. So, I guess to protect yourself and your organization, you must never apologize...

And yet, at Link Care, I have seen countless hurt people blossom when leadership from their mission come and apologize to them for what happened to them on the field. Even an apology from a leader who had nothing to do with their on-field hurt has brought healing, and often restoration into the relationship.

Theresa, how did we get to where we avoid apologizing on behalf of our organization? Is there a way to apologize which is received as heartfelt, but which also protects from future liability, if I could be so crass?

Any suggestions? 

Apologies, Legal Liability, Litigation, and the Kingdom of Heaven

Why must organizations avoid apologizing?

Brent, this is a terrific question! I love it because it gets deep into the core question of what law is supposed to do. I believe that a law is one tool to pursue wholeness, completeness, or maturity. This is a philosophy we share, because each of us uses our respective discipline to help clients move in that direction.

So—a good legal advisor will not just say, “Don’t ever apologize, because you could be legally liable.” Of course, that is strictly true in one sense, because the only place that “apology” discussions are legally protected is in settlement negotiations—already pretty far down the road in litigation. But this approach shows a limited perspective.

Law, like psychology, is often about human conflict. Here you are giving me a hypothetical (lawyers adore hypotheticals) where someone in the organization has done something bad/dumb/stupid/wrong, which has hurt someone.

The answer is not necessarily simple, which is why mission leaders must consider, and a good legal advisor should bring to the table, not only a knowledge of the law, but spiritual and emotional truth and good common sense.

First, the truth tends to set us free. As you point out, hurt people often blossom and move on when there is an apology and genuine caring about their pain. Admitting some kind of wrong could trigger a lawsuit, but it could also defuse one. In medical malpractice for instance, doctors with a warm relationship with their patients, and who are willing to say they are sorry for a mistake, tend to get sued less.

An important caveat here is that the organization should never admit more than the truth. For instance, if an individual did a wrong without the organization’s knowledge, the organization has no reason to admit fault, but only to say, “I am so very sorry this happened to you, and we are taking steps to make sure it will not happen to anyone else.” And there are times when it would not be wise to apologize because of liability issues, and that needs to be thought through carefully.

Here’s another point. Litigation is designed, in its own complex, painful, and outrageously expensive way, to get at the truth. If the wrong happened, in the logic of litigation, there should be some kind of restoration. But isn’t it also true that in the logic of the Kingdom of Heaven, there should be some kind of restoration?

Almost the only restoration a lawsuit can give a person is money. Money becomes a marker or stand-in for the person’s pain. The legal system does not heal, and cannot by its nature. In fact, litigation inflicts further damage on everyone involved and increases bitterness. So that is a bad approach for people who want to be healed.

How much better if the organization can work with the person to provide some kind of restoration, maybe including an apology, therapy, or other ways to help the person! This approach has been used in powerful ways in some settings. For instance, in some religious organizations, a specially appointed team listens to stories of child sexual abuse and then helps to create a healing response, often including an apology from the leadership. Where people have gone this route, it has proven better for all than the bitterness of litigation.

As we advise our clients, there is often no fool-proof answer, but we must seek solutions that will bring wholeness and healing to complex problems.

What Makes a Real Apology

Brent, I have some follow-on thoughts to our discussion about the power of an apology. When a situation has gotten to the point where we might consider an organizational apology,¹ we can assume a person has been hurt, relationships have been broken, and there could be legal liability.

Restoring the relationship takes action from both sides. One side apologizes and the other side forgives. Forgiving alone does not restore broken relationships. Neither does apologizing alone. Restoring relationship requires both sides to value the relationship enough to face and overcome their respective pain from either causing or enduring the offense. If the offended side refuses to forgive, or if the offending side refuses to apologize, then the relationship remains broken.

Someone has to take the first step. Forgiving first takes courage because the other side might never apologize. In that case, the offended people must protect themselves from being hurt again. Apologizing first takes courage because the other side might never forgive. In that case, the people who are admitting liability must protect themselves from retribution.

Forgiveness is usually easier after an apology. And as we’ve discussed, an apology could either aggravate or defuse legal liability, depending on the situation.

Let’s think about what an apology would look like. Some apologies are spurious. We’ve all met people who snap, “I said I was sorry!” and consider the whole incident to be erased, never to be spoken of again. I bet you’ve done some marriage counseling around that very issue.

In the context of an offense by an organization, here is what I think the victims mean by “sorry.” First, they want to see that that the organization has put in place something to prevent the bad thing from happening again. Whether this is fixing the staircase or getting good background screening for workers, steps for prevention say that the organization really does care about Protection.

Second, if there was someone at fault, they want to see that person disciplined. They want the careless person trained. They want the harasser to receive at least a warning and training. They want the abuser dismissed. They want the jerk held accountable by his supervisors or peers. This says the organization cares about Justice.

Third, they want the harm repaired to the extent possible. They want the medical bills paid, the dents pounded out, or the broken window replaced. This shows the organization cares about Restoration.

Finally, and not least important, they want to hear, from a sufficiently important person, the words, “I’m sorry.” This shows the organization cares about Reconciliation.

People file lawsuits because they need something. Lawsuits are painful, embarrassing, and expensive (even plaintiffs pay costs), so something powerful has to drive them. They may want other people protected. They may want justice. They may have losses that need to be repaired. When you file a lawsuit, you are giving up on Reconciliation. In its place, a lawsuit may be a way to achieve Revenge. The power of Sorry, when done right, is that it can meet the first three needs and take you to Reconciliation rather than Revenge. So you don’t need the lawsuit.

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¹With the help of your legal counsel, who will help you consider potential liability (I know, I know, it’s an occupational hazard.)