"I am profoundly sorry."
How many times as litigators, do we wish our clients were free to utter those words. Last week, The University of Notre Dame did just that. It took courage and, perhaps, the disregard of lawyerly advice. Father John Jenkins, the President of the University, issued a statement to students, employees, and alumni of the University accepting full responsibility for the tragic death of student videotographer, Declan Sullivan. Here are the words of Father Jenkins:
"Declan died in a tragic accident while in our care. For that, I am profoundly sorry. We are conducting an investigation and we must be careful not to pre-judge its results, but I will say this: Declan Sullivan was entrusted to our care, and we failed to keep him safe. We at Notre Dame–and ultimately I, as President–are responsible. Words cannot express our sorrow to the Sullivan family and to all involved."
Wow. Good for you Notre Dame. You got it right after weeks of nonsensical statements like "[w]e have systems in place." You have finally accepted the responsibility that was obvious to all and have appointed a qualified independent investigator. Short of preventing the tragedy in the first place, it's the best you can do.
Father Jenkins's statement illustrates the profound power of an apology. I will never forget my first day on the job as a federal district court law clerk. The Judge that I worked for was holding a settlement conference involving a case where a young man was fatally injured in a horrific construction accident. The mother and father sat across the long conference table from the imposing big law lawyers representing the construction company, developer, and landowner. They had poured a million dollars into defending the claim at that point. When the Judge separated the parties, and we were left with just the sad mother and father looking weary and small in the corner office at the imposing conference table, the Judge asked them what they wanted. Want to know what their answer was? An apology. That was it. They wanted the decision makers on the job to say "I'm sorry, we failed to keep your son safe. We are so sorry for your loss." Of course, their lawyer jumped right in and said they wanted an apology plus millions in damages, but the point is that the apology was the starting point. Without that, negotiations led to the road to nowhere. The case ended up settling that day in the Judge's chambers after five years of litigation.
Talk about an eye opening experience for a young lawyer. An "I'm sorry" in that case could have saved years of litigation and millions of dollars in legal expenses. Now, I know that many lawyers will never counsel their clients to admit "guilt" or liability in the form of an apology, but what I am suggesting is that perhaps society should issue some sort of legislative fiat where
Sorry Doesn't = Guilty
Why should it? Can't a person express remorse for an injury and yet not be admitting legal liability?
Last week, Notre Dame got it right under the leadership of Father John Jenkins: "Declan died in a tragic accident while in our care. For that, I am profoundly sorry . . . We at Notre Dame . . . are responsible." Yes, they will pay dearly for their actions and for their statements, but the apology was the right thing to do.