Note to Tiger: Litigation Means Never Having to Say You’re Sorry

            According to news reports, Tiger Woods is about to have a press conference so he can publicly apologize for certain transgressions.  I think this is a bad idea for two reasons.  First, insofar as I know, the only person Tiger needs to apologize to is his wife.  (Well, maybe he should apologize to Phil Mickelson for beating him so often, but I don’t think that’s the apology Tiger plans to issue at his press conference.)  And if Tiger is going to apologize to this wife, he should do that in private, not in a nationally-televised mea culpa session.

            Second, Tiger’s public apology is a bad idea because it violates a basic principle of the American legal system:  Litigation means never have to say you’re sorry.

            I learned this principle long before I became a lawyer.  In fact, I learned it in 1971, when 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 coed, the lovely Wanda June Whipple from Wartburg.  I took her to the Tennessee Theater in downtown Knoxville to see one of the sappiest movies of all time, “Love Story.”

            I actually wanted to go to the Bijou Theater and 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 Alan Alda kind of 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 Cliffs 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 arms of Al or Oliver played by the lovely Ryan O’Neal.  Consequently, Wanda June started crying at the start of the film and blubbered all through it as if she were Halle Berry accepting the Oscar.

            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 frontity.

            The highlight of the film (at least as far as Wanda June was concerned) came just before Ali McGraw 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.  Litigation means never having to say you’re sorry.  Or at least given the threat of litigation, it’s not a very good idea to say you’re sorry.”

            Trial lawyers confront time and time again the issue of whether an apology is an admission of liability in a subsequent civil lawsuit.

            The natural human instinct, particularly for us Southerners, is to apologize after an unfortunate event, even when we are 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.

            But judges and juries don’t always see it that way.  Consequently, testimony that one’s adversary apologized after an accident or incident is generally admitted as evidence of 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 invariably respond, “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 an 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 where 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 the opposing party wants a rectangular apology.

            According to a recent article in the ABA Journal, some jurisdictions are now reconsidering the question of whether an apology should be considered an admission of liability.  At least two friendly states – Massachusetts and Georgia – have passed so-called “benevolent gesture” statutes that exclude as evidence of admission of liability in civil cases all “actions which convey a sense of compassion or commiseration emanating from human impulses.”

            Georgia also excludes actions “made on the impulse of benevolence or sympathy.”  I’m not quite sure what this means, but I think it means an impulsive “I’m sorry” statement would not come into evidence as an excited utterance admission of liability, unless the statement went something like this:  “I sure am sorry I got drunk and ran my pick-up in the back of your SUV.”

            But even in states that have no “benevolent gesture statute,” some law professors who never try cases are suggesting that we non-professors who do try cases should encourage our clients to apologize.  These professors take the approach that if an apology does not settle the case, a jury would subsequently look kindly on our client for his or her contrition.  Southern Methodist University law professor Daniel Shuman is quoted in the ABA Journal as saying, “We ought to encourage apology for those individuals for whom it is therapeutic, and we ought to allow juries to consider this.”

            Well, I’m sorry Professor Shuman, but that’s precisely the problem.  One litigant’s therapy may be another litigant’s admission by a party opponent.

            Which brings us back to Tiger.  His apology may work in the court of public opinion.  But in a real courtroom in a divorce trial it could turn out to be a double bogey.  I’m afraid that when it comes to litigation, the great legal philosopher John Wayne was right.  As he said in “Billy Jack Meets the Cheerleaders,” “Never say you’re sorry.  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.”