The entry of Texas Governor Rick Perry into the presidential race has resulted in a focus on Texas tort reform legislation including the recent Texas loser-pays legislation. From the presidency of Lyndon Johnson to Ronald Reagan a combination of social and political forces combined to increase the litigation risk that business faces. From President Reagan until the present, there have been legislative changes to reduce this risk. These approaches have primarily focused on economic reasons for litigation and not emotional reasons.
The traditional legal risk of an apology has been that it could be presented in court as an admission of negligence or liability. Thus, the classical legal advice has been to say nothing. Unfortunately, this approach may be interpreted as a lack of concern or arrogance. It causes some persons to sue to vindicate their sense of injustice and to ease their emotional pain. An apology may facilitate healing pain and preserve relationships.
The tort reform legislation of recent years has focused on two limitations. One approach makes it more difficult to sue by, for example, restricting venue or imposing a statute of repose that prevents any suit after a period of years from the first sale of a product. A second approach reduces the economic incentives to sue by limiting damages or the situations in which attorneys' fees may be collected. Loser pays increases the economic risk to the plaintiff. Neither approach addresses feelings of injustice or provides the possibility of reconciliation.
The medical profession learned that an apology after an alleged medical mistake could significantly reduce litigation. This group has been the primary focus of existing apology legislation that prevents the introduction into evidence of a statement of concern or care for the injured person. A few states have more broadly worded statutes that apply beyond health care situations. The problem still exists; however, that the precise wording of the statement may be important. Thus, "I am sorry that you broke your leg" may not be admissible in court, while, "I just waxed the floor and failed to place a warning cone" is admissible to prove negligence.
It should be possible to carefully construct an apology statute that encourages statements of concern and at the same time allows a jury to determine the facts of a particular incident. For example, the apology when coupled with meaningful affirmative actions to address the problem and prevent similar incidents in the future could mitigate non-economic damages such as pain and suffering. Such an approach would address the emotional aspects of litigation and encourage preserving relationships. A meaningful, not superficial, apology integrated into the litigation process will benefit all parties and the legal system should provide incentives for this. Beyond easy sentimentality, a well-considered statute will benefit our society.