A LAWSUIT MEANS NEVER HAVING TO SAY YOU'RE SORRY
In 1971, I was a freshman majoring in football appreciation at the University of Tennessee. Through blind, dumb freshman luck, I managed to get a date with a very nice co-ed, the lovely Wanda June Wipple from Wartburg. I took her to the Tennessee Theatre in downtown Knoxville to see one of the sappiest movies of all time, “Love Story.”
I actually wanted to go to the Bijou Theatre to see “Billy Jack Meets the Cheerleaders.” But since it was my first date with Wanda June, I decided to take her to “Love Story” so that she would get the false impression that I was a sensitive guy.
The date turned out to be a disaster. Wanda June had already read the book, “Love Story” which, as we now know, was based on the true life story of Al and Tipper Gore. I, on the other hand, had not read the book since (1) it had not been assigned in my freshman English class, and (2) there were no Cliff Notes available.
But since Wanda June had already read the book, she knew that Tipper, or Jenny, played by the beautiful Ali McGraw, was going to croak at the end of the film, right in Al, or Oliver’s (played by the lovely Ryan O’Neal) arms. Consequently, Wanda June started crying at the start of the film and blubbered all through it.
I, on the other hand, being a typical guy, watched the film impatiently, hoping to see Ali do a nude scene featuring either full frontal nudity or full nudal fronity.
The highlight of the film, (at least as far as Wanda June was concerned) came just before Ali croaked. To my disappointment, a fully clothed Ali breathlessly said to Ryan O’Neal, “Love means never having to say you’re sorry!”
I can’t remember what Ryan O’Neal said in response. Since he was a Harvard law student, he should have said, “No, Tipper, I mean Ali, or rather, Jenny. A lawsuit means never having to say you’re sorry. Or at least given the threat of a lawsuit, it’s not a very good idea to say you’re sorry.”
This was dramatically illustrated in a recent medical malpractice case, Thomas v. Brumfield, in Laurel County, Kentucky.
The plaintiff sued his cardiologist after suffering a collapsed lung following the insertion of a pacemaker. At trial, plaintiff testified that after the surgery, the defendant doctor told him, “John, I’m sorry. It was my fault.”
The plaintiff presented no expert testimony to support his charges of medical malpractice, but instead relied upon the defendant physician’s alleged admission.
Despite the absence of expert testimony, the trial judge let the case go to the jury based on the alleged admission.
Fortunately for the sorry doctor (or rather, the doctor who said he was sorry), the jury disregarded the admission and returned a verdict for the defense.
While the outcome was good for the defendant physician, the case does raise the issue that we trial lawyers confront time and time again of whether a post-tort apology is an admission of liability in a subsequent lawsuit.
A natural human instinct, particularly for us southerners, is to apologize after an unfortunate event, even if we’re not at fault. When we say we’re “sorry,” we don’t mean we’ve done anything wrong. We just mean we are sorry that something bad has happened.
Unfortunately, most judges don’t see it that way. Consequently, testimony that one’s adversary apologized after an accident is generally admitted for consideration by the jury as an admission of fault.
During my career as a trial lawyer, I have defended many clients who, in the face of a lawsuit, have asked a very sensible question: “Can’t I just apologize for what happened and move on?”
I have invariably responded, “Sure, you can apologize. But in order to move on, your verbal apology will have to be accompanied by a rectangular apology.”
You know what a rectangular apology is. It’s a printed apology that includes a dollar amount and a signature, and can be deposited in a bank account.
I’ve been in numerous lawsuits over the years when my adversary has told me, “All my client is looking for is an apology.”
However, on those occasions when I’ve indicated that an apology would be forthcoming, I’ve quickly been told that the rectangular apology was also a part of the deal.
Although an apology sounds like a good idea, I’m afraid the great legal philosopher John Wayne was right when he said, “Never apologize. It’s a sign of weakness.”
Having said that, I sure wish I knew where Wanda June is these days. I’d like to tell her I’m sorry I laughed all the way through “Love Story.”