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Embrace Settlement Negotiations '

By Laurence J. Cutler and Gregory D.R. Behringer
April 29, 2013

It is the long (and almost uni-versally)-held belief among lawyers that settlement negotiations are confidential and cloaked with evidential immunity at a later judicial proceeding. Is this really true? Is the non-admissibility of conversations that occur during settlement negotiations actually that immutable? The answer is, No. There are quite often incidents and situations in which parts or all of settlement negotiations are, in fact, admissible. The following describes a few of those instances and provides a warning to attorneys: Be careful what you say; it may be admissible against your client.

By way of example, in New Jersey, the Rule of Evidence regarding settlement offers and negotiations is Rule 408 (based, in large part, on the Federal Rule of Evidence ' also 408 ' from which it was taken), which provides (in general terms) that settlement negotiations are inadmissible to prove, among other things, liability. Specifically, Rule 408 states as follows:

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