Posted by: johnocunningham | June 27, 2017

Professional Service Communications: The Art of the Apology

For professional service providers, there is perhaps no more challenging form of communication than the apology for something missed or done incorrectly.

As Lee Taft noted in his article, “A Toll on Lawyers,” published in the June 2017 edition of the Texas Bar Journal, doctors, lawyers and other professional service providers are often perfectionists, and “when a perfectionist makes a mistake, he or she feels guilt and fear.” Adding to the challenge of making an apology, clients and others who deal with professional service providers often expect them to be beyond reproach and always at the top of their game.

But all professionals are human, and nobody gets everything right.

So when something goes wrong, and it may or may not have been partly the result of your own professional oversight or misstep, how do you make an apology that sounds sincere and human without making an admission of liability? Or should you even try to do so?

As Taft pointed out in his article, and has been written on this blog, the power of a well-worded apology is immense. It can not only salvage a business or professional relationship and avert a lawsuit, it can help the perfectionist to avoid a scenario where a feeling of “guilt morphs into shame, and shame turns into isolation.” This is not a small consideration for lawyers at a time when (according to one study) 61 percent have concerns about anxiety and 21 percent admit to being problem drinkers (or substance abusers).

What further complicates matters is the law regarding apologies and admissions, which varies by jurisdiction. In some states, apologies are not admissible as evidence, but in others they may be admissible if they constitute admissions of fault.

If a professional attempts to walk the tightrope between apology and admission of liability, according to Taft, he or she can make matters worse, as so-called “partial apologies” that come without expression of any kind of responsibility have been shown to be worse than making no apology at all in the eyes of those to whom an apology is made.

So how does a lawyer express an apology for a bad outcome when he or she may be at least partially at fault, though liability and damage may be unclear?

Consider the hypothetical case of a lawyer who represents the buyer of a business, and fails to list certain assets in a schedule of acquisition, resulting in lack of clear title to the assets and possibly a dispute if the seller refuses to convey the assets because they were not explicitly made part of the deal. It might not be solely the lawyer’s fault, especially if the buyer’s and seller’s business representatives failed to make clear what the scope of their deal included, perhaps because of a mad rush to get things done. But in the hypothetical, the lawyer still feels he or she failed to get the parties to a clear “meeting of the minds” in writing.

In such a case, the lawyer might consider making a truthful statement of remorse, acknowledging some responsibility as part of the business team, promising to figure out what went wrong and fix it so that it does not happen again, and inviting an attempt at salvaging the relationship. Depending on the other facts involved and the applicable law, the counselor might say something like the following:

“I am so sorry that we failed to insure that you achieved all of your business objectives in this deal. I know how much of your life you put into your business, and you have my word that we will figure out how this happened and design a process to insure that it never happens again to you or any other client. We take great pride in assuring that all of our clients’ objectives are met, and so this outcome feels like a terrible defeat for us. Can we please preserve our valued relationship by offering to share the pain of this loss, perhaps for starters, by writing off the time we spent on due diligence related to X oversight, and working with you to figure out how we can all do better in the future?”

If the apology is sincere and well-received, it could quite possibly salvage the relationship, or at least avoid the unpleasant prospect of any angry client resorting to another lawyer to bring suit for damages. Law firms would do well to consider this approach at a time when firms are more frequently being sued by clients, and public sentiment is gaining for laws that require full disclosure of mistakes by professionals.

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