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Settlement offer in United States District Court under Federal Rule of Evidence 408

A settlement offer in United States District Court under Federal Rule of Evidence 408 is the topic of this blog post. Rule 408 of the Federal Rules of Evidence 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 effectively prevented 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 former 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 promote settlement and 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 example 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 see 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.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx


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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