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Embrace Settlement Negotiations '
It is the long (and almost uni-versally)-held belief among lawyers that settlement negotiations are confidential and cloaked with evidential immunity at a later judicial proceeding. Is this really true? Is the non-admissibility of conversations that occur during settlement negotiations actually that immutable? The answer is, No. There are quite often incidents and situations in which parts or all of settlement negotiations are, in fact, admissible. The following describes a few of those instances and provides a warning to attorneys: Be careful what you say; it may be admissible against your client.
By way of example, in New Jersey, the Rule of Evidence regarding settlement offers and negotiations is Rule 408 (based, in large part, on the Federal Rule of Evidence ' also 408 ' from which it was taken), which provides (in general terms) that settlement negotiations are inadmissible to prove, among other things, liability. Specifically, Rule 408 states as follows:
When a claim is disputed as to validity or amount, evidence of statements or conduct by parties or their attorneys in settlement negotiations, with or without a mediator present, including offers of compromise or any payment in settlement of a related claim, shall not be admissible to prove liability for, or in validity of, or amount of the disputed claim. Such evidence shall not be excluded when offered for another purpose; and evidence otherwise admissible shall not be excluded merely because it was disclosed during settlement negotiations. (Emphasis added).
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