When Sorry Isn’t Enough: Clifton Smoot Analyzes Courtroom Apologies for the Advocate

Defendants may offer apologies in court, but plaintiffs’ attorneys should be wary of any attempts by defendants to say “sorry” on the stand. In his Advocate article “Defense Apologies at Trial: Sorry, but That Ship Has Sailed,” Attorney Clifton Smoot explains that almost all courtroom apologies are “sham apologies,” as they lack the five elements that every true apology should include.

“When a defendant says ‘sorry’ for harming your client, look closely at the content and context of the apology,” Smoot writes. “When the defense apologizes at trial, it is not for your client’s benefit. It is a performance for the jury, with strategic and rhetorical goals.”

Smoot notes that legal and psychology experts agree that for an apology to be sincere, the person offering it must express sympathy for the person harmed; show regret and self-criticism; improve behavior in the future; repair the harm; and have the authority to say “sorry” in the first place.

Insincere apologies often come in the form of “agent regret,” which is an expression of sadness that something unfortunate has happened without admitting guilt. Agent regret is typically inadmissible at trial, Smoot explains.

“When it is part of an apology, it typically sounds like this: ‘Plaintiff has been through a lot, and I’m sorry this happened to her,’” he writes. “It is a statement that acknowledges plaintiff’s suffering (and arguably concedes damages), but deflects attention from the defendant’s role in causing it.”

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