100% pure settlement offer? If not, it may be ADMISSIBLE … AT … TRIAL!

Most parties (and their attorneys) expect that settlement communications are not admissible at trial. There’s even a federal rule of evidence on this subject. However, a federal court recently recognized an exception. But, with all due respect to the United States District Court for the District of New Jersey, the opinion is a little dry.

So, after the jump, I spiffed it up a bit — Point Break style, brah — with a few takeaways for practicing attorneys.

This is your wake-up call.

* * *


Roach: Hey man, I’m cold. Really cold.
Bodhi: Here’s your jacket.
[helps Roach put his jacket on]
Bodhi: Johnny, hand me that bag of money.
Johnny Utah: [getting the bag] You’re cold because all of the blood is running out of your body, Roach. You’re going be dead soon. I hope it was worth it.
Bodhi: Don’t listen to him, he’s just scared.
[helps Roach put his parachute pack on]

(Don’t ask how I embedded video clips into this letter, I’m just that good).

For these reasons, among others, we believe that your client’s negligence claims are meritless.

Notwithstanding the foregoing, the Estate of Bodhi is prepared to offer the Estate of Roach two round-trip business class tickets fro Baha to Bells Beach. (The irony of traveling “business class” is not lost on us). If you are interested in resolving this matter, please contact me at the address set forth below.

Vaya con Dios, Brah,

Eric B. Meyer

* * *

You’d think that the letter, which is bookended by the “FOR SETTLEMENT PURPOSES ONLY” caveat at the beginning and an actual offer to settle the case at the end, would dictate that the entire letter is inadmissible at trial. Not so, according to recent this federal recent decision. The court warned that, routinely, responses to demand letters not within the scope of Rule 408. Consequently, any portions of a defendant’s response that “does not contain an actual compromise or a suggestion of a genuine willingness to resolve the dispute” may be admissible.

As for my letter, I fear that all discussions of facts too will be admissible at trial. Fortunately, however, the Estate of Bodhi and the Estate of Roach reached amicable settlement shortly after Warchild filed his pro se motion to intervene, spouting off something about yuppie insects surfing the break.

Back off Warchild, seriously!

Settlement terms are confidential.

“Doing What’s Right – Not Just What’s Legal”
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