Now, most attorneys are taught in law school that settlement negotiations are never admissible at trial, unless the issue at trial is whether or not a claim had settled. However, I had one younger attorney attempt to get the parties’ negotiations into evidence at trial. Thankfully, I caught wind of this early, so drafted the following motion in limine:
Limited settlement negotiations have taken place in this matter. Certain sums were offered to settle the claim, and certain sums were made as counteroffers. Defendant has paid a portion of the Plaintiff’s out-of-pocket expenses incurred as the result of her need for a rental car subsequent to this incident. Nonetheless, the case never settled. Any evidence of settlement negotiations should be excluded, pursuant to Oregon Evidence Code (“OEC”) 408, which specifically makes inadmissible offers to compromise a claim. As OEC 408 states:
(1)(a) Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.
(b) Evidence of conduct or statements made in compromise negotiations is likewise not admissible.
The 1981 Conference Committee Commentary relative to OEC 408(1)(a) goes on to explain:
As with evidence of subsequent remedial measures, discussed in Rule 407, exclusion may be based on either relevancy or policy considerations. The evidence can be considered irrelevant on the ground that an offer of compromise may stem as much from a desire for peace as from a sense of weakness. However, the validity of this position depends on the relative amounts of the offer and claim, a small offer to settle a large claim being more easily construed as a desire for peace. A more consistent and weightier ground for exclusion is the promotion of the public policy favoring compromise and settlement of disputes.
The Commentary relative to OEC 408(1)(b) goes on to explain:
This paragraph changes Oregon law by making evidence of conduct or statements made in compromise negotiations inadmissible at trial…Henceforth, evidence of conduct or any statement made in compromise negotiations, as well as the offer or completed compromise itself, is not admissible. The broad purpose of this rule is to insure that frank and open negotiations will take place without fear that what is said during negotiations will be used against the parties at trial.
Thus, the effect of OEC 408 is clear – any evidence of negotiations, the substance of what was said during negotiations, or the fact that there were negotiations, are inadmissible.
In addition to the above any such evidence is irrelevant to the issues before the court, is unduly prejudicial to Plaintiff, is capable of misleading the jury, and incites the jury to decide the case on prejudice. OEC 401, 402, 403; UCJI 5.01. Based on the aforementioned, Defendant, Defendant’s attorney, and Defendant’s witnesses should not be allowed to offer evidence or argument regarding any offers of compromise in this case, including whether any settlement demands were made against Defendant or her insurer, as well as any offers made to settle the case by Defendant or his insurer. This motion concerns both the fact that there were settlement offers made, as well as the amounts of any such offers.
Not surprisingly, the judge ruled in my favor in quick fashion. While I do not anticipate this ever becoming an issue in the future, I still file this as one of my stock motions in limine in each trial, if nothing else, so that we can have a full hearing on the issue if necessary, so as to give me an order in my favor. That way, the defense will have to violate a court order to attempt to get the evidence in, rather than argue that it had some novel purpose not yet considered by plaintiff’s counsel in an attempt to taint the jury.