Monday, September 16, 2002


Businessweek's Idea No 2 is called "The Mea Culpa Defense" written by Mike France. The article is straight forward in suggesting that businesses should be ready to admit liability if they have committed a wrong. The boxed summary says it well, "The instinctive reaction of executives in times of scandal is to deny, deny, deny -- then clam up. In many cases, the smarter response is a heartfelt apology." .

After reading the article, I remembered the dozens of cases that I've handled that shouldn't have reached my desk had the client only thought of saying the "S" word. Unfortunately, common business sense looks upon the "S" word as a sign of weakness that precludes any semblance of defense in the event of litigation. This is, of course, legally sound as an apology can amount to a confession of liability and no lawyer would be happy to accept a case where he has little room to maneuver a dismissal.

There is a story, however, of a Filipino immigrant in the US who was a victim of medical malpractice that caused him to lose his two fingers. He approached a lot of lawyers in the US who declined to accept his case allegedly because no doctor would testify against a fellow doctor. Yet, he struggled to find that lawyer, knowing deep in his heart that there is someone who can fight his just cause for him in that foreign land. True enough, after a long time, his son found the doctor-lawyer who was even willing to take it on a contingency basis. After months of litigation, they were awarded a hefty sum for the malpractice. The man felt vindicated not only because he succeeded in his quest to find justice for his predicament but also because he was able to prove that all the previous lawyers he consulted were wrong about his case.

Then right after the decision was handed down, the guilty doctor approached his former patient and said, "I'm sorry."

And then the patient cried, "All these years, that is all that I wanted to hear from you."

Until now, as the story is being recounted to me by the man, he gets misty eyed.

This is concrete proof that the "S" word is not really a bad idea. In the world of torts, the apology is the wild card that can throw a quick spin in any litigation. If things work well, the case can be settled with not a penny spent because of the apology. If things don't, then the apology can be a blank check payable to bearer. It takes character and a strong sense of justice to make that decision. Unfortunately, it is very hard to find any man of that make nowadays.

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