Do The Right Thing: Know When To Apologize

Apologies. No, I am not apologizing, but it seems to be a trait that women apologize more than men, oftentimes for nothing at all. Do women lawyers apologize more than male lawyers? If so, why do you think that is?

Do you think this law student should apologize for filing this lawsuit? He flunked his torts exam and he thinks that his wasn’t the worst. (How would he know that?  Did he ask all the other students how they fared? I wouldn’t have shared with him; it’s none of his business.) As a result, he wants to be provided copies of the exams of all the other students.  Chutzpah? Or a legitimate claim? How does the torts professor respond to that?  “Your exam sucked, and that’s why you failed.”  Or “I tossed all the exams up to the ceiling and yours fell down first.”

Should law firms apologize for their timid responses to sexual harassment and related claims? I think so. While law firms have no hesitation to terminate partners involved in criminal shenanigans, it seems that firms are more reluctant to terminate partners on sexual harassment claims, especially if the partner(s) in question brings in business. However, kudos to Jones Day for allegedly terminating a partner named in a sexual harassment complaint. What would have been the “optics” if he had stayed?

It’s hard to fire big producers. It’s hard to terminate someone who has contributed mightily to the bottom line. Too many times, it’s money speaking, rather than doing the right thing.  And what kind of message does that send? It’s not often fun to do the right thing, especially when a firm can take a financial hit because of the bad behavior of one of the colleagues.

The drumbeat of sexual harassment continues. It’s always nice to be told that your contributions are so valued that your complaint about being sexually harassed is taken seriously (e.g., here are your choices: transfer or STFU). No, I am not making this up. Any apology there?

After more than 40 years in the practice, I would have hoped and expected that things would have improved, but economic coercion, duress, whatever you want to call it, still runs rampant. Not every woman can afford to adopt the Johnny Paycheck attitude of “take this job and shove it.” There are bills to pay, student loan debt to repay, families to support, and firms know this. It is in a sense economic blackmail and firms know that. Women stay because they need the work, want the work, even love the work, and they know if their complaints are made public, the collateral damage will not be pretty. It takes courage to speak up and out. As we all know, when cases settle in this context, apologies are rarely part of the settlement and certainly not part of any settlement agreement.

What would have happened if the General Counsel of Bowling Green State University, representing himself in his divorce case, had apologized to the court and the attorney representing one of his minor children?  Would he be spending time in jail for his behavior?  My sense is not, that a genuine apology would have kept him out of jail and while it still may have gotten him in trouble with his employer, he might have been able to save his job and his reputation. We are our reputations.

I am sure that other lawyers have had this unpleasant experience: you are having coffee or a meal with another lawyer (or two or three) and one of the others completely hijacks the conversation, and not just for a few minutes or so, but for the entire time. She doesn’t stop talking, has something to contribute to every single topic (or at least she thinks she does), and will not STFU. Talk about narcissism. I don’t know about you but these times are exhausting and depressing. What about me, you think? Clearly, it’s not about you. Any apology? Of course not.

Millennials were not born yet when the movie Airplane came out in 1980. If you haven’t seen it, you must. Not only is it hilarious, there is a sequence in the movie which every person who has had the misfortune to spend time with a narcissist will get; those of my generation get it immediately. I usually just say the words “Robert Hays’s seatmate in Airplane.”  And no (spoiler alert), he never apologized.

Michael Avenatti isn’t apologizing, but he says he’s been humbled by the events of the last few weeks, facing charges both in California and in New York on a variety of criminal allegations.  Does “humbled” bear any relation to an apology? I think not.

What about Joe Biden’s so-called apology to Anita Hill (millennials were way too young to watch the Clarence Thomas Supreme Court confirmation hearings back in 1991) that he proffered just recently? Not sufficient? When is an apology not an apology? Who gets to decide whether an apology is sufficient? The apology giver or the apology recipient? It should be the latter; otherwise, it’s too easy for the giver to get off the hook.

I see apologies in mediation. Just as in any other situation, sometimes they’re heartfelt and show empathy for the other side’s position, even if they don’t necessarily agree with it. They can be helpful in reaching resolution. Other times, apologies are rote, mechanical, and insincere and can be seen as insulting and condescending in a ploy to drive a settlement number lower. In those cases, apologies are better left unsaid.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].