A Study on Effects of “Apology” on Plan Confirmation in Consumer Bankruptcies

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Complicated Effects

By: Donald L. Swanson

“Using a sample of U.S. bankruptcy judges,” this study “asks whether a bankrupt consumer improves her situation by apologizing for breaching her promises.”

From a 2013 “Bankruptcy Apologies“ study by two professors from the University of Illinois College of Law [Fn. 1].

An “apology” can be a factor (often a decisive one) in mediation and other dispute resolution contexts. So, the “apology” is frequently-studied by social scientists.

What’s rare, however, is to find such a study in a bankruptcy context—and the “Bankruptcy Apologies” study by the two professors is one of those rarities. The following is an attempt at summary of the two professors’ study and findings, with comments.

Study Conclusions and Explanations

The study reaches these conclusions:

“we find an indirect effect of a debtor’s apology on judicial decisions, with apologies affecting perceptions of the debtor and those perceptions influencing confirmation decision making”; and

when the “judges believed that the debtor was more remorseful, they were more likely to approve the debtor’s repayment plan in bankruptcy.”

–Generally

The two professors explain that apologies can “improve financial (and non‐financial) outcomes” for debtors in a variety of contexts because apologizing wrongdoers:

“are perceived to have acted less intentionally”;
“are blamed less for their misdeeds”;
“are thought to have experienced more regret”;
“are predicted to behave better in the future” than “wrongdoers who do not apologize”; and
“make the injured party more “amenable to settlement.”

Such benefits of apologies “have been demonstrated across a number of legal settings, including general personal injury cases, professional malpractice, criminal law, and landlord-tenant disputes.”

–In Bankruptcy

The two professors explain that an apology in a bankruptcy differs in two respects from an apology in other legal contexts, which may “dampen” its effect in bankruptcy:

“First, a group of creditors” often “share the wrong” in a bankruptcy, so there is “no one clear victim”; and

“Second, the harmdoer initiates a bankruptcy case,” which “may itself be perceived as an acceptance of responsibility” and an “owning up” by the debtor.

Nevertheless, the professors suggest, apologies in bankruptcy should “have similar ameliorative effects” as in other settings, since bankruptcy is “rehabilitative system” that “entails some
consideration of how we might expect the debtor to behave in the future.”

Moreover, an apology is legally relevant, the professors suggest, in a variety of bankruptcy contexts. Elements for confirmation of a chapter 13 plan, for example, include the debtor’s good faith and ability to make proposed payments—and the debtor’s remorse “would often be relevant” to both.

Apology to a Judge

It’s noteworthy that “the typical consumer bankruptcy filing offers the prospect of only a small
percentage recovery on a small claim,” so creditors rarely participate in most consumer
bankruptcies.

–Complication

So, “any apology would usually have to be given to a judge or a bankruptcy trustee as a proxy for the creditor victims.” This complicates an apology:

Research shows that “third party observers respond differently to apologies than do the victims”—social norms prescribe that the proper response from a victim to an apology is “to accept it,” but third parties “are more critical of apologies”; and

Research also shows that, while “apologies tend to make lay people more amenable to settlement,” attorneys are more likely to see apologies as “admissions that bolster their bargaining position,” so that bankruptcy judges, as attorneys, “might be less swayed by apologies.”

–Mixed Results

The few studies that have examined the effects of apologies on judges have had mixed results. For example, (i) one series of studies found judges to be “relatively unaffected” by a litigant’s apology, while (ii) a study of labor arbitrators found “sincere apologies by grievants” in
employment cases “resulted in increased grievant win rates.”

In the bankruptcy context, a prior study found no effect: a debtor’s apology in a hypothetical Chapter 7 had no effect on whether debtor’s credit card debt incurred on a Cancun vacation could be discharged.

The Two Professors’ Study

The two professors, in their study, survey 137 federal bankruptcy judges during a “judicial education seminar” or “on-line.” The survey uses a hypothetical married couple seeking confirmation of their chapter 13 plan, raising legal issues over which a judge has considerable discretion: this provided “a context within which an apology by the debtor might influence decision making.”

–Apology Effects

Here are their conclusions on the effect of debtors’ apology on “the likelihood the judge would approve the plan”:

There is “no simple main effect”—i.e., the apology had no direct effect on the likelihood of confirmation; but

There is “an indirect effect” due to “the judge’s perception of the debtors’ remorse.”

–Indirect Effect

Here’s what the professors mean by “an indirect effect” from debtors’ apology:

The judges “rated the debtors as having accepted more responsibility” and “as having greater regret for their spending patterns”; and

The apology, (i) had a “statistically significant effect” on the judges’ belief that debtors “would exercise more care with their finances in the future,” (ii) “led to an increased perception” among the judges that debtors “had accepted responsibility and felt regret”; and (iii) had “an effect on judges’ expectations about future behavior.”

Such effects “are consistent with the effects of apologies found in other contexts.”

These effects arise because the judges are “assessing the debtors’ present mental state regarding past events.” Here’s how it works:

Judges who “perceived higher levels of remorse” from an apology are “more likely to confirm the debtors’ chapter 13 plan”;

Judges believed that apologizing debtors “would exercise more care with their finances in the future” and were “significantly more likely to confirm the proposed plan”; and

Judges were skeptical about plan expenses for a daughter’s gymnastics lessons—but the judges’ perceptions about those expenses “were associated with the degree of remorse” they saw in the debtors, which in turn “strongly related to whether judges confirmed the proposed chapter 13 repayment plan”—in other words, the debtors’ apology helped get their plan confirmed.

Summary of Findings

The two professor make these concluding findings:

“debtors who apologize are perceived more positively and experience better outcomes”;

“apologies influenced the perceptions and decisions of judges,” who “receive the apology . . . as proxies” for the injured parties (the creditors); and

as prior research shows, “judges’ perceptions were positively influenced by the apology.”

Editorial Comments

The two professors’ study makes a lot of practical sense. A judge’s perception of a debtor’s character and of a debtor’s attitude toward creditors and the financial predicament is always relevant—and important. Such perceptions might even be a decisive factor in close-call decisions.

And the no-effect of apology on nondischargeability also makes sense: the issue is usually about what the debtor actually did—and intended—in the past.  The debtor’s current attitude is immaterial.

–Further Study

Here are matters for further study.

 1.  The two professors’ study is based on a hypothetical situation, so it does not address practicalities, such as:

How and in what context does a debtor go about making an apology to the Judge? and

Surely the apology needs to be given in person—not in an affidavit or declaration?

 2.  Additionally, the study presumes that a debtor’s financial predicament is the result of debtor’s wrongdoing or inadequacies of some sort:

–But what about the bad-luck debtor who is caught in unfortunate circumstances (e.g.,  health problems, job loss)?

Conclusion

Thanks to professors Robbennolt and Lawless for this study!

Footnote 1: The study is by professors Jennifer K. Robbennolt and Robert M. Lawless.

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