The apology problem

Every serious matter I advise on reaches the same argument within the first day. The communications team wants the client to apologise. The lawyers do not, because an apology may be taken as an admission. The chief executive, who will have to say it, wants someone to decide.

The argument is usually conducted on the basis of assumptions that are a decade or more out of date.

What the law says

In England and Wales, statute has for some years provided that an apology does not of itself amount to an admission of negligence or breach of statutory duty. Many American states have apology laws of varying breadth, most of them covering expressions of sympathy and some covering more. Scotland and several Canadian provinces have gone further. None of this means an apology is risk-free: an apology that contains an admission of fact (“we failed to inspect the valve”) may still be used as evidence of that fact. But an apology that expresses sorrow and responsibility in general terms is, in most of the places our clients work, much less dangerous than lawyers fear.

What the public hears

The cost of not apologising is rarely counted with the same care. An organisation that expresses “regret” for “any inconvenience” after people have been hurt is heard to be refusing to apologise, because it is. The refusal becomes part of the story and often outlasts it.

The answer is almost always an apology drafted with the lawyers, not against them: sorry, plainly, without admitting facts that have not been established. In my experience that sentence can be written in every case. It just takes longer than either side expects.