Legal malpractice claims are on the rise according to a recently released ABA study that examines claims trends from 2012 to 2015. The study showed that personal injury attorneys had the highest percentage of all claims, followed by claims in family law, trusts and estates, bankruptcy, and collections. Interestingly, the majority of issues that were reported involved the preparation, filing, and transmittal of documents, mostly contracts, leases, deeds, wills, and trusts. Participants in the study voiced concerns that lawyers were not memorializing their clients’ decisions in writing and taking care in drafting.
This news got me thinking. What if, when these kinds of errors were made, attorneys apologized to their clients? Would that have any impact on a client’s decision to sue? Could it reduce claims? Saying “sorry” has helped reduce claims in one area of the law—medical malpractice—in 36 states, including Michigan, that have enacted “I’m sorry” laws.
The key provision in most “I’m sorry” laws is that apologies cannot be used against medical professionals in court. Apologizing can save hospitals money. Further, most victims of medical mistakes don’t really want to sue—they do so because they feel deceived and abandoned.
Michigan Medicine (formerly known as The University of Michigan Health System) was an early adopter of a “communication-and-resolution” program that proactively disclosed unanticipated care outcomes and offered apologies, explanations, and reimbursement or compensation. According to Michigan Medicine, this approach substantially reduced liability costs and improved patient safety.
Can this approach work in the legal world? According to one law professor, the answer is yes. “[A]pology studies suggest that effective apology can positively impact client relationships in two ways: Effective apology can build trust with clients, and clients who trust their attorneys and believe that they will be kept informed through the attorney’s effective communications will more readily accept and understand an apology for a lawyering mistake.”
Admitting mistakes, comments Roy Ginsberg, is the only ethical thing to do. All other options—covering up, blaming others, or lying about the extent of the mistake—will just get you into trouble. Clients realize mistakes happen, says Ginsberg, and more often than not, clients can be more forgiving than you think.
Finally, in that ever-so-rare moment when you do make a mistake and seek to apologize, make sure you are sincere and contrite. The Entrepreneur Magazine article “3 Ways to Offer a Sincere Apology to Clients” recommends that you (1) focus on your role and what you could have done differently, (2) deliver the apology in a manner that is appropriate for the situation (a phone call or in person is usually best), and (3) think about gifting your services—the bigger the mistake, the bigger the gift should be. One word of caution, however: While most medical malpractice “I’m sorry” laws have provisions saying the apology is inadmissible as evidence of an admission of liability, there is no similar shield should a client attempt to show your apology is really an admission of guilt.