This article is the fifth in a series based on the results of a recent Jury Impact survey conducted in conjunction with our sister company, MFour Mobile Research.  This survey was fielded in July with 543 jury-eligible respondents throughout the United States.  “Millennials” include all respondents 34 and younger.

Nothing gives attorneys and their clients more heartburn than the decision about whether to apologize for mistakes.  Many worry that eating a little crow is tantamount to admitting liability and giving up on the case.

That’s not our view.  Although we believe only a small percentage of cases call for an apology, our experience during focus groups and trials has taught us that in certain cases, admitting to a mistake and apologizing is exactly the right thing to do.

Take the case of a surgeon who has operated at the wrong site.  No matter how many expert witnesses you have who will testify that “it happens” and there are reasonable explanations for how it happened, our experience has taught us you cannot convince a jury operating at the wrong site is anything but negligent.  

In such as case, admitting to the mistake and apologizing isn’t just the “right thing” to do in the moral sense – it’s the right thing to do in the strategic sense.

If the defense attorney stands in front of the jury and makes negligence arguments that even their own jury consultant thinks are a stretch, you stand the very real chance of angering the jury and eroding the credibility of what may be a very strong causation case.  The jury might conclude your client needs to be “taught a lesson” with a big verdict, whereas a sincere apology might convince them the lesson has already been learned and to take a long, hard look at the merits of causation.  At the very least, the jury might be less likely to take out its anger by adding an extra zero to the damages award.

From our perspective, if your chances of prevailing on negligence depend on the stars aligning and everything breaking your way, it might be time to consider an apology.

Of course, only in the rarest circumstances would we recommend admitting a mistake actually caused the alleged harm.  Most of the time, you’ll simply acknowledge a mistake was made and the defendant has learned from it.  By making that acknowledgement from the outset instead of fighting a losing battle, you can credibly dispute the remaining liability questions on more favorable ground.

However, this advice comes with one very important caveat: If your jury is stacked with millennials (those younger than 35), apologies carry extra risk.  Our recent survey of potential jurors nationwide found millennials were several percentage points more likely than older jurors to say that if a defendant apologized, they would be more likely to side with the plaintiff and award more money.  Thirty percent of millennial jurors said an apology would make them more likely to side with the plaintiff, compared to only 23 percent of jurors 35 and older.  Similarly, 21 percent of millennials said an apology would make them award more money, compared to only 11 percent of older jurors.  (It is worth noting, however, that solid majorities of all age groups said an apology would not influence their decisions).

Whether an apology is a good idea and exactly how to deliver it are delicate matters that vary greatly from case to case.  That’s what we’re here for.  If you have a case where you need to explore the possibility and impact of apologizing, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help.