TBA Law Blog

Posted by: Wade Davies on Feb 27, 2019

Journal Issue Date: Mar 2019

Journal Name: Vol 55 No 3

I’ve told many clients, “If you are not sorry, don’t apologize.”

Even though acceptance of responsibility is often cited as one of the most important factors at sentencing, I’ve always thought judges hear insincere apologies so often that apologies can do more harm than good. I think it is better to be quiet than insincere.

Apparently, there is research that backs up this hunch, at least in part.  And very thoughtful social scientists have provided framework for evaluating whether an apology will be effective.

I do not mean to discount the value of real remorse. Alan Ellis, one of the national gurus of sentencing, has interviewed distinguished federal judges all over the country about what is important at sentencing.  In summarizing the interviews, Ellis emphasizes the importance of allocution and apology, but he notes the judges value sincerity more than anything.1 Judges often express the opinion that they can judge the sincerity of an apology at allocution.2

A recent episode of the “Freakonomics Radio” podcast provides a fascinating perspective on the issues we face in sentencing and examines the social science and economics of apologies.  The episode is called “How to Optimize Your Apology” and fulfills its promise of examining “the front lines of apology science.”3  I highly recommend listening to the entire episode because it contains examples of effective and ineffective apologies. The podcast includes the work of John List, an economist at the University of Chicago, who had the opportunity to run an apology experiment in the field for Uber (a

company that has had plenty of opportunities to apologize). The story about how this came about is fascinating. Economist List found himself late for a speaking engagement because after 25 minutes of a 27-minute Uber ride, the confused driver passed the starting point again.  List also just happened to be the chief economist for Uber and saw the opportunity to do a large-scale field experiment on the economics and effectiveness of apologies.4

The researchers labeled several different kinds of apologies that are worth thinking about for lawyers:

  • A status apology, which is simply an admission of incompetence with a request for forgiveness;
  • A commitment apology, which contains an admission with a commitment to do better;
  • An “offender-driven” apology, which stresses the effect on the offender and an explanation of the motivation and circumstances of the offender;
  • An apology that costs the offender by including payment or restitution.

The Uber experiment concluded there was no significant good will produced by a simple apology. The apology had to have a cost. With Uber, that effective cost was a coupon. They also cautioned against over-apologizing and found that apologies could backfire, especially a commitment apology with an unfulfilled commitment. 

A Rutgers sociologist interviewed on the podcast, Karen Cerulo, also categorized apologies using several factors, including whether the apology focuses on the offender, the victim or the context. She found that the most successful apologies start out by focusing on the victim, not the apologizer. One of the best points from the podcast is that an apology should focus very little on yourself or justifications. It should end with a sincere expression of remorse and if possible be accompanied by some form of restitution. The successful formula:

  • Identify the victim and harm you caused.
  • Express remorse.
  • Make restitution.

Cerulo was most surprised with how few people make an effective apology.  This supports my intuitive feeling that it is often better not to say anything. Talking about how difficult this situation has been on yourself and your family is likely harmful rather than helpful

Cerulo points out that the least effective apology is the “offender-driven” apology in which the offender concentrates on themselves, context and motivation.  This is too close to an excuse. She further warns against the non-apology often given by celebrities claiming they are sorry for the way other people interpreted their actions.5

This is in line with what a number of judges report. For example, Alan Ellis interviewed District Judge Charles Breyer, who said of allocution:

A defendant should absolutely not come off as the victim. He should not apologize to the court or the government; rather only to the victim. Apologize to the people whom you’ve hurt. Show me what you are going to be doing in the future.6

If making the apology hurt is important, it is not surprising that judges tended to find tangible demonstrations of remorse more important than saying, “I’m sorry.”  A defendant is always better off to make a real effort to pay restitution, to complete treatment and to demonstrate real insight than to make a hollow apology about how much this has impacted his or her life. An effective apology can’t convey, “I’m sorry I got caught and have to deal with this.”

An apology must be real. It has to show insight about the harm one has caused, and it is best to show tangible cost — such as extraordinary efforts to provide restitution.  Otherwise, as in many areas of criminal law, it is best to keep one’s mouth shut. 

WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense.Davies is a member of the Tennessee Bar Journal Editorial Board.








1. Alan Ellis, “Advice from the Bench for White Collar Client Facing Sentencing,” Criminal Justice, ABA, Fall 2015;  Alan Ellis, “What Federal Judges Want to Know at Sentencing,” The Federal Lawyer, September 2017, p. 63.
2. Another great source on the importance of a sincere allocution is the article by U.S. District Judge Mark W. Bennett, “Heartstrings or Heartburn: A Federal Judge’s Musings on Defendants’ Right and Rite of Allocution,” The Champion, March 2011, p. 26.
3. Freakonomics Radio, “How to Optimize Your Apology,” Episode 353, http://freakonomics.com/podcast/apologies/ (including transcript).
4. See Basil Halperin & Benjamin Ho & John List & Ian Muir, 2018. “Toward an understanding of the economics of apologies: evidence from a large-scale natural field experiment,” Natural Field Experiments 00644, https://ideas.repec.org/p/feb/natura/00644.html.
5. The academic work that lead to the
Freakonomics interview can be found at Cerulo, Karen and Janet M. Ruane, “Apologies of the Rich and Famous: Social, Cultural and Cognitive Explanations of Why We Care and Why We Forgive,” Social Psychology Quarterly, 2014, 77: 2: 123-149.
6. Alan Ellis, “Views from the Bench on Sentencing Representation: Part 10,” http://alanellis.com/wp-content/uploads/2018/01/law-360-