A settlement offer under Federal Rule of Evidence 408 in United
States District Court is the topic of this blog post. Rule 408 generally forbids evidence of any settlement
offers or any conducts or statements made during settlement negotiations.
Rule 408 was first introduced in 1974. It replaced the
original rules of evidence which represented a huge stumbling block to any
meaningful settlement negotiations as under the common law any statements made
during such settlement negotiations were admissible and therefore fair game for
use at trial or in summary judgment motions. Not surprisingly this threat had a very
chilling effect that prevented most if not all litigants from engaging in any
discussions regarding a possible settlement. Rule 408 changed the common law rule as it forbids
the admission into evidence of statements made during settlement negotiations
“when offered to prove liability for, invalidity of or amount of a claim that
was disputed as to validity or amount, or to impeach through a prior
inconsistent statement or contradiction.”
Rule 408 was adopted to facilitate the resolution of
disputes without the expense and uncertainty of protracted litigation. Many State
courts around the nation have adopted their own version of Rule 408, either
through formal rules or through case law. For the State of California has
adopted Evidence Code sections 1152 and 1154 which serve a similar purpose.
Rule 408 states that,
“(a) Prohibited Uses. Evidence of the following is not
admissible — on behalf of any party — either to prove or disprove the validity
or amount of a disputed claim or to impeach by a prior inconsistent statement
or a contradiction:
(1) furnishing, promising, or offering — or accepting,
promising to accept, or offering to accept — a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise
negotiations about the claim — except when offered in a criminal case and when
the negotiations related to a claim by a public office in the exercise of its
regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for
another purpose, such as proving a witness’s bias or prejudice, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.”
Rule 408 does have some exceptions. For example any previous
settlement negotiations between a plaintiff and another party could be
introduced by a defendant to establish for statute of limitations purposes the
date that plaintiff understood the cause of his or her injuries.
Attorneys or parties who would like to view a sample
settlement offer letter under Federal Rule of Evidence 408 created by the
author and available for free download can use the link shown below.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post
have been prepared by Stan Burman for informational purposes only and are not
legal advice. Transmission of the information contained in this blog post is
not intended to create, and receipt does not constitute, any business
relationship between the author and any readers. Readers should not act upon
this information without seeking professional counsel.
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