• Brian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 408

Rule 408 is primarily a rules of Civil cases and it says that negotiations between parties cannot be used as evidence of the validity of a disputed claim. So for example if you slip and fall at Wal-Mart and they offer to pay you a settlement you cannot then use that offer against them at trial to prove that they negligently kept their store floors unreasonably slippery.

This is a good rule because it allows for the open negotiation of cases. The other rules related to this are Rules 409 and 410 which cover offers to pay medical expenses and plea negotiations in criminal cases are also designed to encourage people to attempt to resolve their differences without going to trial.

The courts have described that this rule refers to offers to settle. For example a "full and final settlement" of a company's work on a building—supports a reasonable conclusion that it is evidence of a compromise or settlement and was properly excluded. See, e.g., Ford Motor Co. v. Leggat, 904 S.W.2d 643, 649 (Tex. 1995) ("Settlement agreements . . . , of course, are not admissible at trial to prove liability."); Vinson Minerals, Ltd. v. XTO Energy, Inc., 335 S.W.3d 344, 354 (Tex. App.—Fort Worth 2010, pet. denied) (holding text of letter supported reasonable conclusion that letter constituted settlement offer). Mega Builders, Inc. v. Bell Tech Enters., Inc., NO. 14-17-00642-CV, 10 (Tex. App. Aug. 2, 2018).

Rule 408. Compromise Offers and Negotiations

(a) Prohibited Uses. Evidence of the following is not admissible either to prove or disprove the validity or amount of a disputed claim:

(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 statements made during compromise negotiations about the claim.

(b) Permissible Uses. The court may admit this evidence for another purpose, such as proving a party’s or witness’s bias, prejudice, or interest, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Comment to 2015 Restyling: Rule 408 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.

The reference to “liability” has been deleted on the ground that the deletion makes the Rule flow better and easier to read, and because “liability” is covered by the broader term “validity.” Courts have not made substantive decisions on the basis of any distinction between validity and liability. No change in current practice or in the coverage of the Rule is intended.

Finally, the sentence of the Rule referring to evidence “otherwise discoverable” has been deleted as superfluous. The intent of the sentence was to prevent a party from trying to immunize admissible information, such as a pre-existing document, through the pretense of disclosing it during compromise negotiations. But even without the sentence, the Rule cannot be read to protect pre-existing information simply because it was presented to the adversary in compromise negotiations.

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