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:
- 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
- Conduct or a statement made during compromise negotiations about the claim
- Criminal Case Exception: 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.
Key Points - Applies to all parties, neither can even get in their own statement
- No impeachment exception
- Offers & acceptance broadly defined.
- Includes both conduct and statements.
- Applies to criminal & civil cases.
- Must involve a “claim” that is “in dispute”
- “Dispute”- need a party to be denying liability or rule doesn’t protect
- If ANY dispute → court will probably apply rule
- Doesn’t have to be an actual mediation, just some dispute and an effort to resolve it
- (disputed claim BEFORE offer is made)
- Statements/conduct must occur during “compromise negotiations”
- Extends to general statements made during these negotiations that aren’t related to the negotiation itself
- Applies to settlements with 3rd parties.
- Exception I.E. –
- Sending letter to IRS “here’s 10K, I’ll get the rest in the next few months if you don’t prosecute me plz” then you are later prosecuted for tax evasion → that letter is coming in you dumbass
Richard drove his pickup through a red light while texting on his phone. He struck Dan who was cycling on a brand-new Specialized Roubaix carbon frame bike. • Dan filed a lawsuit for personal and property damage. The parties held a mediation where in Richard said, “I’ll give you $5,000.00 to settle the claim.” • Later, during the mediation, Richard says, “Okay, the reason I hit you was because I was texting with my girlfriend. It was completely inappropriate. If I pay you $10,000.00 can we walk away?” • After settlement talks break down, the parties clear their things and head for the door. Richard says, “I’m really sorry. I should never have been texting while driving.” • At trial, Dan offers all of the above. Admissible?
- Neither statement getting in probably
- Room for argument for when they’re leaving the office
Ronnie is a veterinarian who worked for the Apex Vet Clinic. When hired, he signed a contract with a no-compete clause barring him from opening a competing business w/in 30 miles of the Apex clinic. After 2 years, Ronnie left and set up an online company that allows clients to purchase pet medication over the internet. He advertises the site in the local Apex newspaper. AVC’s attorney sends a cease and desist letter demanding he stop selling to local customers. Ronnie believes the business does not compete but to avoid trouble sends a letter back saying he would be willing to pay AVC $1K per year to sell to local customers. AVC responds by suing Ronnie. At trial, AVC attempts to offer Ronnie’s letter into evidence. Ronnie claims it is barred by Hearsay and rule 408. Admissible?
- Probably getting in
- Big room for argument as to whether claim was disputed at the time
- ■ Good lawyer would include in offer: “we didn’t do shit but will offer 1k for you to leave me alone”
FRE 409. Offer to Pay Medical and Similar Expenses. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
- Limited to if offering to prove liability
- Thus, admissible if offering for impeachment, ownership/control, etc.
- No disputed claim requirement!
- Other statements/conduct around the offer still admissible
- No time duration → can happen wayyy after and rule still protects
- Rule applies regardless of if person making the offer is a party or was involved in the injury
- Scope limited to these types of expenses
- I.E. – paying tow charges would not be excluded
Casey Cooper slipped and fell while walking into the restroom at Chuy’s Tex-Mex restaurant. As a result of the fall, she herniated a disc in her back between the L4/L5 vertebra. She filed a lawsuit against Chuy’s for negligence claiming pain, suffering, and medical expenses. At trial, she attempted to introduce two statements made by Angela Taplin, the restaurant’s manager. Shortly after the fall, Taplin said: “I’ve told our staff not to mop the floor like this when people are in the restaurant! This is the sixth time this month that someone’s been hurt.” • Later, after seeing Cooper placed in an ambulance, she said “Please take care of yourself; make sure you request a private room and get the best medical care. Our company will take care of it.” Defense counsel objects to both statements as inadmissible hearsay and prohibited by rules 408 and 409.
- “I’ve told our staff not to mop the floor like this when people are in the restaurant! This is the sixth time this month that someone’s been hurt.”
- Hearsay? No, statement of party opponent
- 408? No, not offer after disputed claim
- 409? N/A here
- “Please take care of yourself; make sure you request a private room and get the best medical care. Our company will take care of it.”
- Hearsay? No, statement of party opponent (unless outside of scope)
- 408? No, not offer after disputed claim
- 409? → yes, this statement is excluded