Should apologies be admissible into evidence as proof of fault in civil cases? While this question is a simple one, its potential ramifications are great, and legislative and scholarly interest in the admissibility of apologies has exploded. Shortly after the idea of excluding apologies from admissibility into evidence was raised in academic circles three years ago, it rapidly spread to the policy arena. For example, California and Florida enacted laws in 2000 and 2001 respectively excluding from admissibility apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorrythat I injured you") after accidents. Eight states are now considering pending apology bills, and other states likely will follow.
Though such bills may at first appear mere modifications of the states' evidence codes, such "mere modifications" may indeed be revolutionary. Apologies can be central elements in preventing and settling lawsuits. Yet apologies are often not offered after injuries, in part from the fear of liability. Thus, rules barring apologies from admissibility, in particular rules excluding fault-admitting apologies, have the potential to dramatically alter dispute resolution and legal practice. Such bills also raise many questions. If apologies are to be excluded from admissibility, why draw the line where states like California and Florida have in excluding apologetic expressions of sympathy and benevolence after accidents? Would it be better to exclude full, fault-admitting apologies? And what of intentional injuries? Are not apologies needed in such cases too? The goal of this Article is to present the pros and cons of such legislation, that is, policy arguments that can be made supporting and opposing such legislation.
Jonathan R. Cohen, Legislating Apology: The Pros and Cons, 70 U. Cin. L. Rev. 819 (2002), available at http://scholarship.law.ufl.edu/facultypub/31