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    Apologies could avert litigation

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    By MARTIN DYCKMAN

    © St. Petersburg Times, published September 10, 2000


    TALLAHASSEE -- After an apparently suicidal pilot killed 24 people and injured 71 by crashing a DC-8 into Tokyo Bay, the president of Japan Air Lines apologized in person to the victims or their families and offered payments. Not one lawsuit was filed.

    An article in Judicature magazine earlier this year cited that 1982 tragedy to illustrate one of the reasons why Americans sue more often than most other people do. Many others don't need to.

    The point of the article, which made enormous sense, was that Americans might save themselves a lot of money and grief simply by learning to say, "We're sorry."

    More important, we might also save lives. The Bridgestone/Firestone scandal presents a particularly ugly question: Did the tire company cover up defects, while unsuspecting people died, in a misguided belief that the truth might be more expensive? Did Ford?

    The irony is overwhelming. Bridge-stone/Firestone was formed when an American firm with a sorry reputation was acquired by a Japanese company with a good one.

    The American corporate culture -- deny, deny, deny -- must have been part of the deal. On Aug. 23, with the present scandal long out of control, the company featured its chairman, Masatoshi Ono, in full-page advertisements nationwide. The ads bubbled with reassurances but not the slightest hint of regret. It took a congressional hearing, the 20th century's version of the Spanish Inquisition, to extract an apology from him.

    That was many months, many deaths too late.

    A lot of other people are overdue to apologize in this mess.

    High on the list are those judges all over the country who, until lately, have routinely granted protective orders, ostensibly for the sake of "trade secrets," in virtually every tire failure product liability suit. Whatever ugly truth the plaintiff's lawyer might dig up, Bridgestone/Firestone was assured no one else would know.

    Our holier-than-thou Congress is actually guilty as sin for tolerating tire and auto standards and safety agency budgets that are intentionally weaker than when Jimmy Carter was president.

    And let's not overlook the various legislatures, particularly Florida's, that have encouraged corporate irresponsibility by stiffing victims out of their rights to sue. Here, for example, a Firestone victim's punitive damages would be limited to $500,000 or three times (under the worst circumstances, four times) actual damages, whichever is more. Should Firestone already have paid punitive damages somewhere else, Florida law would exclude them altogether unless a judge -- not a jury -- first finds that "the amount of prior punitive damages . . . was insufficient to punish that defendant's behavior."

    To get this and other so-called tort reforms, the big-business lobbies and their allies in the insurance racket made nearly $3-million in 1998-cycle political contributions. They outspent and outsmarted the trial lawyers, whose $2.2-million was largely lost in failing to elect a Democratic governor. The two sides are at it again in this campaign, except that they appear to be spending more of their money directly on propaganda and less in ways that the candidates are required to report.

    They could save that and much more by taking to heart what Daniel Shuman and other lawyers say about the soothing, healing properties of sincere regret and prompt compensation.

    Shuman, a Southern Methodist University law professor, conceded in the Judicature article that potential defendants would need protection against having their apologies used against them as evidence of liability in court. Defamation law does so by limiting damages when there was a timely retraction. Florida tort law already makes settlement offers inadmissible.

    I haven't found a lawyer who disagrees, despite the conventional wisdom that fewer lawsuits would mean less income for them.

    "I have no empirical evidence of this," says Bill Wagner, a Tampa plaintiffs' lawyer, "but I do know that sometimes the emotions of my clients are dramatically heightened in medical malpractice by the doctors not wanting to talk to them."

    "What people overlook is that fundamental human dynamics play a huge role in litigation," says Ken Connor, a Tallahassee trial lawyer who specializes in medical and nursing home malpractice. He believes there would be far fewer lawsuits "if people would acknowledge their mistakes and demonstrate their compassion and concern about it."

    This is, of course, precisely what insurance companies warn their clients not to do. My auto insurance card, and probably yours, too, instructs: "Do not admit fault. Do not discuss the accident with anyone" other than the company and police.

    In one of Wagner's recent cases, a widow was profoundly moved by a defendant's regrets, but the insurance company wouldn't settle until the eve of trial.

    Somehow, we've got to make it safe to say "I'm sorry." That would be real tort reform.

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