When East Texas plaintiff lawyer Jim Parsons learned that a trucking company was willing to pay $1.6 million to end his client’s tort case, he got the defendants to agree to something else that’s exceedingly rare in modern civil litigation: a sincere personal apology.
Apologies are unusual in tort cases for a variety reasons, chief among them that defendants are loath to offer anything more than broad condolences to a plaintiff that has sued them for fear of admitting liability.
But in the right set of circumstances, an apology is all it takes for a defendant to end a civil dispute amicably.
Parsons’ client, Katherine Scott, was a recent college graduate who was relocating to a new job in 2015 when a TQT trucking company 18-wheeler blew through a red light and smashed into the blue Hyundai she was traveling in with her 80-pound boxer, Alcide.
Scott was trapped in her crumpled car for 45 minutes with six broken ribs, a broken bone in her left arm, a bruised heart and a punctured lung before she was freed by firefighters. Her dog flew out of the car and was found a week later hiding under a building with scrapes and burns.
Scott sued the trucking company and its driver for gross negligence and alleged in a January trial before an Anderson County jury that she suffers from post-traumatic stress disorder. The mental severity of the accident is what now causes Scott the most pain, forcing her to repeatedly relive the trauma in her mind.
And she needed something other than money from the trucking company to help with her recovery, Parsons explained.
“PTSD is a permanent injury. It’s incurable—it’s treatable—but it’s incurable. And there is a fixation on the original trauma,” said Parsons, a former state district judge and State Bar of Texas president. “With Katherine, it was being run over by a truck at a red light.”
“I asked her on the stand ‘Is your primary motive money?’” Parsons said. “And she said ‘No. I just don’t want this to happen to anyone else.’”
Just before the case was to go to the jury, the trucking company’s insurance provider offered to settle Scott’s case. She accepted its $1.6 million offer, but as a condition, Scott wanted a representative from the trucking company to personally apologize for what happened to her.
“She needed this psychologically,” Parsons said. “She needed to know that she didn’t go through this for nothing.”
Parsons put the condition into a written agreement and presented it to the trucking company’s lawyer as a term of the settlement. The condition was an easy one for TQT to accept, said Jeff Kershaw, a Dallas lawyer who defended the company at trial.
“This was a case of clear liability,” Kershaw said. “Our trucking company ran a red light and unfortunately hit the plaintiff. We could not dispute liability.”
While the trucking company conceded they caused the wreck, they disputed Scott’s claims that they were grossly negligent in their actions, an argument Kershaw thought he’d win before his client’s insurance company offered to settle the case.
“I was 25 minutes away from my closing argument. To me, we should have taken it to verdict, but it was out of my control,” Kershaw said.
In the end, Kershaw said, it wasn’t a big deal for his client to apologize to Scott.
“This was a very emotional agreement. And when Jim Parsons asked for the apology, I talked with my client,” Kershaw said. “They could have easily have said ‘No’ and the case would have settled anyway.”
“But my client said ‘OK,’” Kershaw added.
The Price of an Apology
If an apology were all that was needed to end a civil dispute, there would be no need for courts or lawyers. And that’s why it can be outright shocking when a plaintiff extracts one out of a defendant.
For example, the legal world took notice in September when former Fox News anchor Gretchen Carlson won a $20 million high-profile sexual harassment settlement and an apology from Fox News parent company 21st Century Fox.
Lawyers who regularly win big cases for plaintiffs say they rarely bother asking for an ounce of humility from the defendants they sue.
“It’s a psychological impediment to a resolution,” said Mark Werbner, founder of Dallas’ Sayles Werbner who has represented both plaintiffs and defendants in high-stakes tort cases. “It’s very hard to reach a settlement that requires one side to admit fault.”
Werbner usually advises his plaintiffs against demanding an apology. “In a lawsuit, emotions are already high enough,” he said. “And if you go to a jury, no one is going to apologize. So I try not to handicap a settlement by asking [them] to cry uncle.”
Mark Lanier, a Houston plaintiff attorney who built a career out of winning billion-dollar cases against drug manufacturers and medical device companies, never asks the companies he sues for an apology for fear they’ll actually take him up on the offer during a trial.
“I don’t want to ask for an apology if they’re going to give me one,” Lanier said. “I’ll say: ‘Sir or Madam, you have never apologized to my client, have you?’ And they’ll say: ‘No.’”
“I had one case where there was a death and I said: ‘You didn’t send any flowers to the funeral, you didn’t send a card, you didn’t say you’re sorry for the role you had in this. You didn’t even say you’re sorry it happened,’” Lanier said. “I’d hate for the witness to say ‘I’m sorry this happened.’ That takes the sting away from the jury. We live in a society that grants repentance and I want them to be punished. I’ll only ask for an apology if they’re not going to apologize.”
But there is an exception to Lanier’s rule: a defendant’s apology will occasionally encourage his client to accept a reasonable settlement offer.
“Sometimes it will sweeten the deal,” Lanier said. “Sometimes people won’t settle unless there is an apology. The money may be right, but the apology has to be there.”
David Beck, a partner in Houston’s Beck Redden who has defended hundreds of corporate defendants, said in his 50 years as a lawyer he’s rarely had a plaintiff ask for an apology.
“Even when it does come up, it’s what do you mean by an apology?” Beck said. “We’re so sorry this happened, but if you go further than that and admit that you’re at fault, that’s a horse of a different color. If it’s a manufacturer or a supplier of a product, can another plaintiff take that and say that’s an admission of liability?”
But if an apology is the only way to make a plaintiff’s case go away, Beck advises his clients to make amends with their mouths, and never in writing. “If it’s oral, it’s a little tougher for a subsequent plaintiff to rely on that,” Beck said.
Beck notes that sometimes it’s his corporate clients that demand an apology. For example, one of them sued an employee it accused of stealing files, Beck said.
“And part of the resolution of that matter was that he apologized before he resigned. That was very important to the company,” Beck said.
And the company got its apology.
“It’s kind of a message to employees: if you’re thinking about doing something similar, this is how it’s probably going to end up,” Beck said.
Face to Face
On Jan. 9, the parties in Scott v. TQT gathered in a Palestine courtroom and advised the judge they’d settled their case. After the jury was dismissed, a representative of TQT stood up, looked Scott in the eye and told her she was sorry.
“They faced each other, and it was kind of sweet. It was from the heart on both sides,” Parsons said. “And Katherine responded very well. I was proud of her. In fact, if we hadn’t been there, they would have hugged.”
Kershaw said his client’s apology was genuine.
“They didn’t concede to all of the liability, but said they were sorry. And they were sorry,” Kershaw said. “If I ran a red light and hit somebody, I’d feel sorry about the accident too.”
Scott and her dog have recovered from their physical injuries and she continues to work as a hospital employee while her boxer is now a service dog comforting PTSD patients, Parsons said.
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