To apologize or not? Calculating the cost of contrition

Sunday, 19 November 2017, 05:37:26 AM. Why do those called to account for sexual harassment or other wrongdoing struggle to say they're sorry?

The bad news is that you've been accused of screwing up, big time -- of sexually harassing a subordinate, maybe.  Or committing medical malpractice.  Or misquoting a prominent elected official in the newspaper you work for.

The worse news is that you know the allegation is accurate.

Surely a straightforward admission of responsibility would make your accuser feel better; it might even make you feel better, once the initial shock of shame subsided. Apology can do that.

But wouldn't it be safer to deny the allegation -- or at least try to reframe it? To insist that what your accuser has described as a serious transgression was really just as an unfortunate misunderstanding, an honest mistake, a trifling lapse of judgment?



Won't it be difficult for anyone to prove your culpability beyond a reasonable doubt?  And why should you relieve your accuser of that burden -- especially if confessing or apologizing could cost you your job, a big legal settlement or even your freedom?

Candor by the teaspoon

The calculus of public contrition is complex. And rarely have so many public figures been forced to do the math in such a scalding spotlight.

Allegations of sexual misconduct are approaching pandemic levels:  A recent survey by the New York Times reported accusations against 29 politicians, entertainers, corporate executives and other celebrities. And that was before Sen. Al Franken, President George H.W. Bush and Sylvester Stallone were catapulted to the front of the news cycle.

The public responses of the accused have run the gamut from the unconditional surrender of comedian Louis C.K. ("These stories are true") to the categorical denial of senatorial candidate Roy Moore ("Completely false").

Former Alabama Chief Justice and U.S. Senate candidate

Former Alabama Chief Justice and U.S. Senate candidate Roy Moore waits to speak at a press conference, Nov. 16, 2017, in Birmingham, Ala. (Photo: Brynn Anderson, AP)

The typical suspect opts for some variation the confusing mea sorta culpa served up by Kentucky House Speaker Jeff Hoover, who resigned after his settlement of a sexual harassment complaint brought by a staffer became public.

"I engaged in banter that was consensual, but make no mistake: It was wrong on my part to do that," Hoover said in a tearful press conference. "And for that, I am truly sorry."

Watching the clock

At least some people facing legitimate allegations of wrongdoing feel a compulsion to ask their accuser's forgiveness, although the strength and specificity of their apologies may be constrained by the statute of limitations.

Deborah Gordon, a Bloomfield Hills attorney who has enjoyed conspicuous success suing employers on behalf of workers alleging harassment, says an apology can be effective at defusing an accuser's anger if the offender expresses remorse soon after the matter is brought to the employer's attention. But she warns clients never to expect an apology once they've filed suit.

"I've never had anybody apologize in any case I've tried. They would rather write a check than confess to harassment," Gordon says. "The reason to settle is to buy privacy."

Few defense lawyers would advise a client accused of any wrongdoing to confess before the time limit for bringing a criminal prosecution or civil suit (three years in a sexual harassment complaint brought under Michigan's civil rights law) has expired. 

But many of those accused in the six weeks since Hollywood producer Harvey Weinstein's misconduct was exposed are being called to account for long-ago behavior. Copping to the allegations made against them may bring plenty of serious consequences, but legal liability is no longer one of them.

In an effort to mollify their accusers and reassure friends and fans of their essential virtue, many offenders opt for the "Sorry you felt uncomfortable" gambit, in which the accused admits to the specific conduct alleged but insists he was innocent of any intention to harass. This is seldom a successful strategy; although it has the virtue of vindicating the accuser's honesty, it frequently carries the implicit (and patronizing) suggestion that she or he is making a mountain out of a molehill.

But even Louis C.K.'s comprehensive admission of guilt and remorse fell short in the eyes of many beholders, probably because it came so long after the fact, and only after his accusers went public with their allegations.

A prescription for candor

Those who confess to sexual misconduct face unique hazards, especially if they are married or involved with romantic partners. But the challenge of deciding whether and when to apologize is no less acute for those accused of other kinds of wrongdoing.

Richard Boothman, chief risk officer for the University of Michigan's web of hospitals, medical school and affiliated practices, made headlines more than a decade ago when he persuaded his employer that its practice of contesting nearly every malpractice claim and barring direct communication between patients and the doctors they were suing was counterproductive.

"We were doing the dumbest of all things, defending every single case regardless of whether it could be defended," Boothman said in a phone conversation this week, recalling his uneasiness when he joined the medical center's legal staff in 2001. He worried that, as an attorney skilled at limiting the legal exposure of the doctors and hospitals he represented, he was undermining the university's ethical standards.

"The better I got in the courtroom," he reflected ruefully, "the better I was at defending care we weren't really proud of."

Boothman's solution, borrowed from a pioneering Veterans Administration hospital chief in Lexington, Ky., was that U-M's hospitals and doctors would henceforth be proactive about alerting patients when a medical error or lapse in standards had adversely impacted their treatment, whether or not they had threatened legal action. By apologizing and pledging to compensate victims of malpractice before a lawsuit was filed, Boothman says, his client hoped to build trust and cultivate a clinical environment where even inadvertent errors were quickly acknowledged and rectified.

More than 15 years later, Boothman is certain the policy he instituted has saved money while strengthening staff morale and doctor-patient relationships. But he acknowledges that other medical institutions have been slow to jettison their reflexive defensiveness.

"There not a single study that says hospitals who are honest about acknowledging their failings face terrible financial consequences," he said, "but almost everyone thinks they do."

When "sorry" falls short

Newspapers confront the apology conundrum, too. More than 20 years ago, when I had been with the Free Press just a short time, an argument took place between the newspaper's then-executive editor, Robert McGruder, and its general counsel, Herschel Fink.

As a result of a transcription error, the Free Press had misquoted Barbara Rose Collins, then a congresswoman fending off multiple challengers in a heated Democratic primary contest.

As reported in the Free Press, Collins had said: "All white people, I don't believe, are intolerant. That's why I say I love the individuals, but I hate the race." But a tape recording of the interview revealed that Collins had actually said: "All white people, I don't believe, are intolerant. That's why I say I love the individuals, but I don't like the race."

That the Free Press needed to acknowledge the misquotation and correct it in print was obvious. But McGruder, who worried that the reporter's carelessness would look like a deliberate attempt to antagonize Collins' constituents, proposed to write a column in which he apologized to both the congresswoman and the newspapers' readers.

Fink objected, arguing that a public apology would exaggerate the significance of the error and encourage Collins to sue the Free Press for libel. But McGruder published his column on the front page.

Collins did sue, and the Free Press spent a lot of money contesting her claim before the Michigan Court of Appeals dismissed it on grounds that "the gist of her [Collins'] actual statement was the same as the subject misquotation." Collins was left with an apology but no legal damages.

McGruder died in 2002. I never had the chance to ask him about his apology to Collins, but I doubt he would have regretted making it even if it had helped her win her lawsuit. 

Like U-M's Boothman, he knew that, in the long run,  maintaining trust and preserving relationships is more important than minimizing one's legal exposure. It's a lesson many of those struggling to say they're sorry have yet to grasp.

Contact Brian Dickerson: bdickerson@freepress.com

 

 

 

 

 

 

 

 

 

 

 

 

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