Amended Federal Rule of Evidence 408: Trapping the Unwary




Weninger, Robert A.

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Review of Litigation


This article presents the results of an empirical study of lawyer reaction to Federal Rule of Evidence 408 (Compromise and Offers of Compromise) as amended on December 1, 2006. It begins by arguing that rational settlements require that parties have full access to the facts pertinent to their dispute and that such access often depends on the parties voluntarily disclosing the strengths or weaknesses of their claims or defenses during the negotiation of a settlement. It then discusses how the adoption of original Rule 408 in 1975 promoted the bargaining process by expanding the common law exclusion rule to make inadmissible not only offers or acceptance of compromise, but also conduct or statements made during the negotiation of a settlement. After discussing the division in the federal courts over whether original Rule 408 barred the admission of civil settlement evidence in criminal cases, the Article reviews two Advisory Committee proposals to amend Rule 408 to resolve the split. The article concludes with a discussion of the lawyer reaction to the amended Rule.



Federal Rule of Evidence 408


26 Rev. Litig. 401