Companies Can Apologize: Corporate Apologies and Legal Liability

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Discussions of corporate apologies frequently suite or imply that apologies create legal liabilities for the apologist and, therefore, that corporate attorneys routinely recommend against apologies. A review of formal ("block letter") and common law indicates that apologies generally do not constitute evidence of guilt and that, in fact, they sometimes have positive consequences for the apologist. Persons who practice (or teach) crisis communication should avoid the mistake of relying on an over-simplified and inaccurate understanding of the legal issues surrounding corporate apologies.

Keywords: Apology, law, crisis, regret, responsibility

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IN THE UNITED STATES, a company can apologize to someone who has been injured by a product or an employee without creating a legal liability for the company. Indeed, an appropriately worded apology can produce several positive effects.

Some executives, public relations (PR) professionals, and scholars assume that corporate attorneys routinely discourage or even forbid corporate apologies. A USA Today story about corporate apologies reported that "Lawyers representing the company often discourage it [an apology] for fear of lawsuits from consumers" (Adams, 2000, p. 3B). In a scholarly study titled "Liability means never being able to say you're sorry," the author concluded that "our present legal system discourages apologies" (Tyler, 1997, p. 51; see also Kotani, 1999, p. 129; Tavuchis, 1991, p. 43; Wagatsuma & Rosett, 1986). But the folklore about the legal consequences of apologies is oversimplified.

While an apology might strengthen a plaintiff's case (to the disadvantage of the apologist), the evidence indicates that an apology has equal, or even greater, potential to make a positive contribution to an apologist's legal strategy. Our goal in preparing this article, therefore, has been to review some of the relevant legal principles and cases so that business communication scholars--and the future executives and PR professionals in their classrooms--will have a more accurate and complete understanding of the legal issues surrounding corporate apologies. (Of course, our article does not provide legal advice for any specific case and an individual confronting a decision should discuss the situation with an attorney.)

Complexities

To address the issues concerning corporate apologies requires that we acknowledge at least three sorts of complexities: the complexities of a federal system of government, the complex or even conflicting goals of the United States legal system, and the complex task of defining an "apology." We will discuss each of these in turn.

Complexities of a Federal System

Legal practices vary from country to country (Wagatsuma & Rosett, 1986) so this paper focuses on the legal principles relevant to corporate apologies in the United States, a federal republic with multiple layers of national, state, and local government. Discussing the legal issues that surround apologies in the US requires, consequently, an awareness of the distinction between state laws and courts, on one hand, and national laws and courts on the other. Furthermore, the United States legal system relies both on formal statutes or "black letter law," and on the precedents provided by previous legal decisions or "common law."

Black letter law consists of laws adopted though an appropriate legislative process and includes formal rules, regulations and ordinances that are set by local and national governing bodies and recorded as statutes for a particular jurisdiction (municipality, state, or the United States). The statutory regulations governing corporate bodies differ from state to state, and again from state to federal levels. And, in general, very little black letter law addresses apologies so that corporate apology issues tend to fall into the realm of common law where conclusions must, of necessity, be carefully qualified.

Common law is created by precedent--how other courts have ruled on similar issues. There is no formalized doctrine for common law so courts take each new case and apply judgments from prior cases that involve similar issues, adapting judgments to the specifics of each subsequent case. In federal cases, the United States Supreme Court dictates the common law under the Constitution: Decisions made by the Supreme Court represent "binding authority" and all lower tier federal courts are required to abide by those decisions. Under the United States Supreme Court are Federal Circuit Courts of Appeals, each of which has binding authority on federal district courts within its circuit and may exert influence ("persuasive authority") on courts in other circuits. On a local level, municipal courts follow decisions of their respective state supreme court, akin to procedure in the federal system.

In comparison to black letter law, common law allows much more case by case discretion. Different courts (for example, federal versus state courts, or different districts within the federal court system) apply different precedents and standards. And, perhaps most significantly, human factors can play a large role in common law decisions. As human beings, judges and jurors are subject to influence. In matters of common law, judges and juries have the final say about the relevance and the implications of previous cases. And, while black letter law and common law exist as guidelines by which judges and juries may formulate their decisions, the perceptions that judges and juries form concerning the parties (the victim, the apologist, etc.) clearly influence rulings. Consequently, …