The Role of Apology in Litigation - A Visible Result?

I was struck a couple of weeks ago by the power of apology in the context of litigation. Does the current civil litigation sphere account for what is often masked by the adversary system - a potentially genuine apology? Despite legislation in some states and provinces evincing apologies are not evidence of liability, how many lawyers truly do counsel their clients to say “I’m sorry”? In law school, do we teach the apology as just the cathartic musings in some form of A.D.R. or as perhaps instead a settlement tool in a litigation context? Is it effective? Is it fair? Is it over-rated?

In Ontario, a former forensic paediatric pathologist, Dr. Charles Smith, testified before a provincial commission of inquiry about his role in the wrongful conviction of William Mullins-Johnson, a man wrongfully imprisoned for 12 years. The video below shows that perhaps the request for an apology was sprang upon Dr. Smith. Regardless of the reason for the apology, it is, at the very least, a powerful example of something that just does not show up very often in a civil trial.

The video is here:

http://video.citynews.ca/?fr_story=4c379c468f14f85816fc269e1033f01b8cb03101&rf=sitemap

So what of apology in litigation? In economic terms, does it ever “buy” a damages discount for a tortfeasor? In corrective justice terms, does it ever assist in redressing the moral imbalance between victim and tortfeasor? What do we do with it? As academics, how can we account for its role? Is it the ‘unmeasurable?’