Professionals are only human. Even the most cautious professional is not immune from the occasional mistake. Whether the mistake gives rise to a claim of professional malpractice, however, will often depend not on the error that was made, but on what actions the professional took to resolve the error after it occurred. Professionals are generally reluctant to admit responsibility for a personal mistake. Traditional wisdom suggests that doing so would amount to an admission of guilt that could provide damaging evidence in a future lawsuit. However, recent studies suggest that in cases where malpractice is clear, owing up to a mistake early can actually be the best method to settling lawsuits, or avoiding them altogether.
Admitting a mistake can be emotionally difficult. Professionals are often tempted to seek justification for the mistake or assign error to others. Yet professionals who refuse to accept responsibility, or who seek to cover up the error, often end up making matters far worse than the original mistake. Doing so can violate ethics rules requiring a professional to disclose all facts material to the representation to the client. Further, if the client finds out about the mistake on their own, they are far more likely to seek legal recourse.
In contrast, offering a sincere apology can help to relieve some of the perceived harm in a professional malpractice suit. For instance, where an attorney has made a clear error, such as missing a filing deadline or statute of limitations, a sincere apology can help to lessen a client’s anger and make them think twice before filing a lawsuit. If the client does file a lawsuit, an apology can offer several strategic benefits in litigation. For one, a targeted apology may bolster the attorney’s credibility and make it more difficult for the plaintiff to prove that she is entitled to damages. Further, an apology may help shift the focus of the jury from the defendant’s bad acts to the plaintiff’s motivation in filing suit.
Offering an apology, like many aspects of professional practice, offers potential costs and benefits. If the professional’s conduct does not amount to clear mistake, or involves a dispute as to strategy, an apology may imply an error where none actually exists. Therefore, apologies should be limited to cases where the error is free from doubt. If the professional chooses to apologize, the apology should be complete, sincere, and offer help to remedy the harm. When done properly, a simple apology can make the difference between protracted adversarial litigation, and amicable settlement of dispute.
An all important disclaimer: before falling on your sword, consider your professional malpractice contract first. Many malpractice policies forbid any communication with a potential claimant that may eliminate defenses or harm the case down the road. The too eager apology may result in a denial of coverage. Therefore, in the appropriate circumstance, the perfect apology may be one that does not admit fault but rather expresses understanding for the would-be claimant’s concern/frustration/disappointment. This is a fine line, so tread carefully.