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Never Apologize

Rumpole of the Bailey’s credo was “Never Plead Guilty.”

Real-life lawyers can’t be as dogmatic as Rumpole, the fictional British barrister, but I do have a rule I preach to our executive employment clients, ranging from business CEOs to University Presidents, which is almost as ironclad as his: “Never apologize.”

Apologizing is not the same as taking action to fix a mistake if it is, in fact, capable of being fixed. Humans make mistakes, lots of them, and the more responsibility, visibility and even creativity an executive has, the more likely he or she is to make a mistake, sometimes a serious mistake. But recognizing a mistake, and taking action to fix it, requires no apology.

Apologies are not the same as rectifying aberrant behavior: they are just an attempt to make people (including the apologizer) feel better, but they rarely succeed in doing even that. And in a social media-driven world it is the apology — not the mistake itself or an attempt to fix the mistake — which can ruin an executive’s career or invite lawsuits which, whatever their outcome, lead to miserable sleepless nights.

Addressing a mistake, and fixing it if possible, without the dangerous and usually meaningless ritual of apology, starts with good legal counsel.  What counsel brings to that task is a cool (or cooler) head, an objective perspective, independence, professional discipline, experience and, above all, common sense for both the short- and long-term view.

None of us can speak up as effectively for ourselves — particularly when we are experiencing the wave of emotion which comes from being in the midst of an embarrassing situation — as we can for others. Nor can we put things in the proper perspective for ourselves as fully and thoughtfully as a professional advisor can.

It is easy to think of notorious examples of apologizers whose mea culpa prompted their removal or resignation. Larry Summers at Harvard, for example, was beloved by the students and had successfully outlasted considerable faculty antagonism until he unaccountably apologized for remarks he had deliberately designed to provoke academic debate. He was soon gone.

Other folks, accused of far more serious misconduct, remain in place. Has anyone heard an apology from Bill Cosby, who reportedly continues to draw favorable — and paying — audiences for his personal appearances? This is no defense of the horrifying behavior Cosby has been accused of, only a reflection on the ability of his legal protectors. And if he did those awful things, is it likely anyone would — or should — accept an apology? To paraphrase Oscar Wilde, the problem with apologies is that your friends don’t need them and your enemies won’t believe them.

Also, fixing a mistake can often be accomplished without the adverse legal consequences of an apology. An apology can become a legal admission of wrongdoing. Trying to fix something is not an admission of error, but an attempt to make things better.

There is an analogy here to a doctrine of products liability law, effective in a number of states, where “remedial measures” — efforts to improve a product — cannot later be introduced as evidence that something was wrong to begin with. The public policy rationale for this is clear: we don’t want to inhibit companies from improving their products because they fear that any improvements will be evidence of prior faults.

Of course, no rule governs all legal situations. Good counsel always starts with an exhaustive review of the facts and an exploration of the unique circumstances at issue. Still, it is a rare situation in which an apology is part of a viable legal (or personal) strategy. You may have noticed that Alex Rodriguez, now that his drug-related punishment is over, recently expressed regret for his own actions — but he didn’t exactly apologize.



About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.