Stroock & Stroock's Joel Cohen
If you believe in God, you don't need a prophet's wisdom for this: God won't be apologizing any time soon for His sometimes devastating Acts (of God). At least until now, that has not been His practice. While it might be intriguing indeed to sense remorse from the Divine for having visited upon humanity a hurricane or a plague, or even a holocaust, for now, we must look inwardly for soulful relief if any is to come. God doesn't take blame -- it's not a strategy; it's just the way it plays out.
Suppose, however, that people or corporations are seen by man's law as the direct or proximate cause of a disaster -- a disaster for which God doesn't seem to be "responsible." For circumstances where blame is finally affixed at their doorstep, or even before blame is assessed or likely, we wonder about the real value (or, contrarily, the frequent dubiousness or inefficacy) of an apology -- even when the apology may seem exquisitely sincere and heartfelt. Of course, confession, perhaps in the form of an apology, is good for the soul. Still, will it advance one's legal position?
On occasion, depending on the emotional makeup or mind-set of the surviving victim(s), an apology may actually help a criminal defendant's legal situation. Perhaps it will dissuade the victim(s) from asking the prosecutor or the court for blood. Or in the rare case, it will actually help encourage a request by the victim(s) for leniency for the offender depending on the defendant's intention or apparent state of mind when the offense was committed. However, if the victim or surviving victims believe that the apology is insincere or "strategic," the effect may produce the opposite result. How often have we seen a family or even a professional prosecutor lash out against an apology -- however sincerely intended -- as being too little, too late, or simply tactical?
Ironically, sometimes sincerity is actually the polar opposite of what the victim or surviving victim(s) truly want. They want to lash out with the type of vengeance that only true defiance or uncanny detachment from the perpetrator will allow or justify. For example, even if New York City Mayor Michael Bloomberg, hardly the cause of Hurricane Sandy, had personally exposed himself to the superstorm's fury to publicly atone for having first announced that the New York City Marathon would go forward while so many people were left homeless in Sandy's wake, enthusiasts of the New York Post, which portrayed the mayor as the worst person on earth, would still berate him for a dubious apology. Imagine instead the consequence if he had told residents of low-lying areas not to evacuate, but to stand their ground, which would have resulted in calamity. An apology would never, ever help. Sometimes, to-the-grave vindictiveness on a victim's part is the only thing that the victim wants. In a cynical world, one must sometimes live with that reality and reject the value of an apology, even if it might somehow inwardly "help" the apologizer.
Turning to a more practical matter: Surely no attorney for a reckless driver (or a driver's insurance carrier) would allow his client driver to actually visit the accident victim and tearfully apologize, admitting to having daydreamed or having talked on his cell phone at the critical moment when his car went off-course ("You want to commit legal suicide, get another lawyer to defend you.") The insurance carrier might conceivably even go so far as to disclaim coverage if legal defenses were otherwise available. Put simply, the protocols of our profession, actually moved by what the law itself enforces, typically frown on such apologies: Since our standard protocols generally seek to remove human emotion from the antiseptic world of the courtroom and curiously penalize "truth," we tend to eschew deviations from the norm, even before courtroom combat begins.
But even more poignantly, can a meaningful apology truly accomplish the result intended? Meaning, will it limit financial or even reputational exposure? Consider those who enabled convicted child abuser Jerry Sandusky at Penn State, or the New Orleans police officers who shot unarmed civilians as they crossed the Danziger Bridge in search of higher ground following Hurricane Katrina, or other perpetrators of like tragedy, who might be counseled to strategically apologize to their victims. Or even those who simply want to apologize just because it's the right thing to do.
Maybe not. Still, perhaps one needn't always be so cynical, pessimistic or dismissive even in a world of cascading cynicism. Some cases are lost before they even begin. Take, as an atypical example, the backlash against apartheid. When he came into office, President Nelson Mandela (along with Archbishop Desmond Tutu) proposed the radical approach of a Truth and Reconciliation Commission. They recognized that the wrongdoing that had victimized so many could never truly go away or be compensated for -- that traditional legal remedies would not work or were time-barred. The commission actually took giant steps, according closure to those -- on both sides -- who needed it. Even the pain endured by the victims in having the commission essentially accord legal amnesty to the perpetrators was ultimately assuaged by the salve of the victims gaining candid admissions -- in a way, apologies -- from those who had wronged them. Both sides were able to move forward with their lives.
We don't propose here that victims will or should typically accept an apology as a substitute for the time-honored palliative of financial restitution or remuneration, or in exchange for criminal prosecution of the offenders as compensation for civil loss. Rather, we see it as one of a series of measures that might be useful as a "strategy" (cynical as that concept might be). Thinking outside the box is the hallmark of the truly fine lawyer. Almost anyone can draft a clever defense pleading, aggressively depose a plaintiff or litigate a case until the cows come home. The great lawyer is the person who is able to get inside the head not only of the opposing attorney, but also that of the adverse party. That lawyer tries to decode what will help give that particular plaintiff victim or victims the "compensation" that they truly need, or at least want.
And maybe, just maybe, what the victim or surviving victims need more than anything else is an apology -- a candid, possibly public, one at that. And, critically, without the "neither admit, nor deny" gossamer that lawyers reflexively use to masquerade and obscure, but which actually detracts from the value of the apologizer's acknowledgment of wrong. The sincere apology unencumbered by words that mitigate and undercut may represent a valuable vehicle on the causeway to effective resolution. It may also soften the victim and his demands in ways to allow both a client and the "wronged" individual (or community) to proceed with their lives and put behind them the litigation that will be unsatisfying to all.
Bear in mind, under the federal criminal sentencing guidelines, a defendant warrants a less onerous sentence if he shows "acceptance of responsibility" -- as well he should. We speak here, however, of something different. Here is the distinction: One can somewhat easily, perhaps superficially, admit with specificity the offending act, and say: "I did wrong and accept responsibility for having done so." Still, that is perhaps quite different from an "apology." A true apology demonstrates remorse for having caused hurt. Not merely, "I’m sorry if I somehow offended you (or if you took offense at what I did)." Rather, "I did wrong. My wrong victimized you, and I am left bereft of any excuse for having done so." Would a victim be "satisfied," as it were, with the former variation, which accepts responsibility but shows no true indicia of personal remorse?
