July 31, 2013 Articles

Admissibility of Settlement-Related Evidence at Trial

To understand how settlement-related evidence may be used at trial, it is important to understand the parameters of Rule 408.

By Gerald E. Burns

Many trial lawyers assume that evidence of settlement offers and negotiations can never be admitted at trial. There is a general belief that placing the legend “Settlement Communication” on correspondence and other documents somehow precludes those documents from ever being seen by a jury. The bar on admissibility of settlement-related evidence is not nearly that broad, however, and can lead to a trap for the unwary. Federal Rule of Evidence 408, which governs admissibility of settlement-related evidence, excludes such evidence only in certain circumstances. Moreover, Rule 408 expressly allows the use of settlement-related evidence for a number of reasons. This article examines the parameters of Rule 408 and some of the permissible uses of settlement-related evidence.

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