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Saying Sorry – LexBlog


Will Smith released a video of him “apologizing” to Chris Rock for bitch-smacking him at the Oscars. Was he sorry? Was it a “good” apology or some phony apology intended to salvage Will Smith’s reputation after his outrageous act?

For criminal defense lawyers, remorse has long been something of an art form, as defendants are given an opportunity to speak before sentence is imposed and, with certain exceptions, often advised that an expression of remorse will be more persuasive with the judge, the person imposing sentence, than other options.

Typically, a defendant will say the words that we’ve discussed, practiced, occasionally scripted because there is nothing scarier than a defendant speaking in court where he could at any moment go off script, say whatever words seem appropriate to him in the moment and undo every effort to save his skin. If the apology goes well, the prosecutor will often  argue that the defendant isn’t sorry he did the crime, but sorry he got caught as reflected in his long career of putting his own self-interest above that of society. Everyone in the room is familiar with the dance steps. Sometimes, a defendant is sincerely sorry and the judge is moved. Sometimes, not. Still, we try, because why not?

If Will Smith was serious, why did he try to shift the burden onto Chris Rock to be ready to speak to him? Rock has nothing to do with Smith’s apology, which is entirely on Smith’s shoulders. What was he thinking, or was he thinking at all?

At Persuasion, former Penn prawf and current Third Circuit judge Stephanos Bibas writes of the “corruption of apology,” an act once meant as a means of reconciliation that has since been morphed into a coerced ritualistic requirement, or else.

But today’s public practice of scripted apologies looks very different. These days, universities and corporations compel robotic confessions from students and employees who give offense just to avoid a lawsuit or bad PR. They want to save their skins by stifling scandal. But Twitter mobs are not sated by performative groveling or even sincere apologies.

Apology y 2.0 looks little like the old-fashioned apology 1.0 that we have long strived for. It cares nothing about sincerity and carries no hope of forgiveness. The bastardized version threatens free thought, the possibility of redemption, and the integrity of the real thing.

The point of an apology was to express remorse so as to move past whatever error or misdeed occurred. Judge Bibas speaks of Apology 1.0 as an act of sincerity, although I can still remember teachers on the playground ordering one kid to apologize to the other kid for beaning him with a stick, after which they shook hands and ran away as if nothing happened. But Judge Bibas offers a tripartite test under Apology 2.0.

First, there is sometimes no agreed-upon wrong, but rather a contested norm.

Second, the wrong is usually not personal to the masses who demand an apology and seek to punish.

[T]hird, there is often no effort to converse with the wrongdoer, let alone speak face to face.

While each of these conditions may apply under certain circumstances, it’s unclear whether they’re overarching conditions or just situational. There are times one can never be sure whether an expression will result in a million gnats sending you lovey emojis or hatey emojis. If you say “women are strong,” that’s a good thing, right? Except you neglected to expressly assert that transwomen are women, so you’re transphobic. And what about non-binary birthing persons, you shitlord? Not only are the rules ever-shifting, but the hated thing uttered yesterday is the bravest thing ever uttered today, until it’s loathed tomorrow, because we “evolve.”

So Smith hit Rock. Isn’t this between the two of them? Well, maybe the fact that he did so on the Oscars with the cameras running and eyeballs watching changes the equation. But even if no one saw it, would there be no cry of either outrage or adoration? Remember, Smith was “defending” his wife who has alopecia, and could just as easily have been a huge hero as villain. It’s not that the masses can’t take whatever side their high priestesses tell them to take, but that they never had a horse in the race and are playing the game to enjoy a little side power. After all, silence is complicity makes great cover for joining a mob to destroy whoever you’re told is evil.

And finally, to whom is the target of the mob’s hatred apologizing? For what? If Smith wanted to apologize to Rock, he didn’t need to film it and put it on insta for all to see. Just call Rock. Send him an email. Text him. But this was a performance for the benefit of others and had nothing to do with Rock, who was merely a prop in Smith’s comeback video.

Bibas proffers the syrupy advice to apologize if you believe you’ve done wrong “because it’s the right thing to do.” But if you don’t believe you’ve done anything wrong, then the judge goes all Tom Petty.

Coerced apology will bring neither you nor your community redemption. Instead, it will encourage the bullies. And if we speak what is in our hearts, without regard to what is on our Twitter feeds, we will be able to look ourselves in the mirror. When someone tries to force you to apologize, without first convincing you that you made a mistake and wronged someone, just say no.

This is part of the talk defense lawyers have had with defendants forever. They explain to us what happened, how it happened, and there is often a pretty reasonable justification for their committing a crime. In their world, it was neither evil nor heinous, but a matter of survival. If they didn’t shoot first, they would be the dead body in the gutter. Is the judge suggesting it’s better they die than draw first?

We talk them off the ledge, telling them that they’re not wrong, but it’s still not going to help them with the judge, who will invariably be certain that he knows better and is the god-like arbiter of good and evil. Say the magic words as best he can and maybe the judge won’t add another 121 months to the sentence for your having the integrity to not back down. As for Will Smith’s apology, he should have asked a criminal defense lawyer to help him with the script.


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