Picturing Justice, the On-Line Journal of Law and Popular Culture

Justyna Herman,
B.A. in Linguistics. Currently a law student at the University of Alberta

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People need meaningful apology from the wrongdoers in order to fully recover from the inflicted wrongs.


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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