Mr. Nice Guy


(1) Cars driven by D and P collide at an intersection controlled by a traffic signal. Each alights from his car, and the following dialogue ensues:

D: Why didn't you stop for the light? See what you've done?

P: What do you mean, "you stop for the light"? I had the green. Oh, my car. And my neck is hurt. Ohh ...

D: Well, maybe it turned on me in the intersection. Let's not make a big deal of this. Maybe we can handle this ourselves.

P: Ohh, my neck ... and my back ... ohhh ...

D: Now wait a minute, let's talk this over. I'm sorry I ran the light. Here, how's about if I give you this, ah, $100, for the fender, and, ah, here's another $100 for your neck--go get a massage or something. Let's forget about it--how about it?

P sues D for $750,000 for personal injuries and property damage. Is any of the above admissible?

(2) During pretrial discovery, P's lawyer takes D's deposition. After four hours of testimony, D, who is represented by counsel, says:

D: Now, look, you guys--I've had enough of this. Let's go off the record. This isn't going anywhere. Even if the case goes to trial it will take five years to get there, and who knows if P will get a cent? Even if he wins, he isn't going to get more than my liability coverage provides. How much were P's medical bills? $2,300? Here's a check for that amount plus $1,700 for his time. If he signs this release, it's his.

P rejects these terms. At trial how much of this is admissible?


The Federal Rules exclude not only compromises and offers to compromise but also accompanying conduct and statements when offered to prove liability. This rule represents a departure from the traditional view that statements of fact made during compromise negotiations are admissible unless phrased in a formalistic, hypothetical fashion. See, e.g., State v. Stevens, 248 Minn. 309, 80 N.W.2d 22 (1965).

The same protection that is afforded statements of fact during compromise negotiations is denied to statements made in connection with the furnishing of medical expenses (Rule 409). The Advisory Committee's Note to Rule 409 says that the difference in treatment "arises from fundamental differences in nature. Communication is essential if compromises are to be effected, and consequently broad protection of statements is needed. This is not so in cases of payments or offers or promises to pay medical expenses, where factual statements may be expected to be incidental in nature." Is this explanation unconvincing?

Sometimes it is hard to distinguish between an admission and an offer to compromise. Despite attempts to liberalize the rule, it can still be a trap for the unwary. Is this claim in dispute as to either validity or amount? Is this an attempt to compromise a claim? D's statement, "Maybe we can handle this ourselves," could be interpreted as an attempt at informal dispute resolution, and, likewise, his comment, "let's talk this over." Moreover, although he seems to be conceding liability when he states, "Well, maybe it turned on me in the intersection" and "I'm sorry I ran the light," he does seem to be negotiating the amount of liability. If the purpose of the rule is to promote compromises and to eliminate the necessity of a formal announcement such as "Now we are in settlement negotiations," the court should adopt a liberal attitude as to when informal dealings and compromise negotiations begin. On the other hand, this evidence is extremely probative. In fact, admissions are so probative that they get special treatment under the hearsay rule (Rule 801), personal knowledge requirement (Rule 602), and various other rules of evidence (e.g., Rule 1007).

Further complicating this problem is that D's statement might be construed as evidence of offering or promising to pay medical, hospital, or similar expenses occasioned by an injury. Although such evidence is not admissible to prove liability, the Advisory Committee's Note to Rule 409 provides that statements not a part of the act of paying medical expenses are not covered by the rule and hence would be admissible. If Rule 409 applied, the evidence that D offered $100 for a neck massage might not be admissible, but the statements about the light turning on him in the intersection and his running the light would probably be admissible.

Given the reliability of such statements, and the lack of data showing that parties in this situation will not attempt to informally resolve matters without the protection of an exclusionary rule, should such statements be admissible?

D's outburst at deposition also raises the issue of whether the claim is disputed. But the claim is undoubtedly disputed in the pleadings, and D appears to be negotiating the amount of his liability. This statement, even though an outburst, still seems like more of a compromise negotiation than the informal dealing in the street. Moreover, given the setting, its probativeness is diminished. It is common knowledge that litigants having their deposition taken have a strong incentive to buy peace and that this may be the motivating cause of the offer.

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