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- Hon. Jonathan M. Bailey
T EXAS R ULE OF E VIDENCE 408 S O Y OU T HINK S ETTLEMENT O FFERS ARE - - PowerPoint PPT Presentation
T EXAS R ULE OF E VIDENCE 408 S O Y OU T HINK S ETTLEMENT O FFERS ARE - - PowerPoint PPT Presentation
T EXAS R ULE OF E VIDENCE 408 S O Y OU T HINK S ETTLEMENT O FFERS ARE I NADMISSIBLE IN F AMILY C ASES ? Hon. Jonathan M. Bailey Judge, 431 st State District Court WWW .D ENTON C OUNTY . COM /431 H OW C AN TRE 408 H ELP M E H ELP Y OU ? P REFERABLY
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- Reasonable/Flexible
- Motivated by Child’s Interests
- Good Faith/Fairness
- Communicative
- Respectful/Courteous
- Unreasonable/Inflexible
- Motivated by Self Interests
- Bad Faith
- Nonresponsive
- Vengeful/Spiteful
FACTORS IN AWARDING ATTORNEY FEES Party A
Party B
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TEXAS RULE OF EVIDENCE 408
Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or
- ffering or promising to accept, a
valuable consideration in compromising
- r attempting to compromise a claim
which was disputed as to either validity
- r amount is not admissible
to prove liability for or invalidity of the claim or its amount.
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TEXAS RULE OF EVIDENCE 408 (CONTINUED) Evidence of conduct or statements made in compromise negotiations is likewise not admissible. (to prove liability for or invalidity of the claim or its amount)
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TEXAS RULE OF EVIDENCE 408 (CONTINUED)
- This rule does not require the
exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
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TEXAS RULE OF EVIDENCE 408 (CONTINUED)
- This rule also does not require
exclusion when the evidence is
- ffered for another purpose, such as
proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
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INTENT OF TRE 408
- Reflect the public policy of encouraging
the settlement of controverted claims
- Determining the purpose for which
settlement evidence may be offered permits its probative value to be weighed against the risk that it will be misleading or unfairly prejudicial
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DEFENSIVE USE
- Exclude evidence when it is offered
for the prohibited purpose, that is, to prove liability for or invalidity of the claim or its amount
- The party objecting to the evidence
carries the burden of showing that it is being offered for the prohibited purpose
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POTENTIAL REASONS TO EXCLUDE EVIDENCE IN FAMILY CASES
- Fault in the breakup of marriage
- Traditional civil liability claims
- Torts, fraud, etc.
- Modification if material and
substantial change is in dispute
- Enforcement by contempt
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PRACTICE TIPS FOR DEFENSIVE USE
- Be careful what you put in writing
- Client should approve any offer made
- Client should accept, reject, or
counter any offer received
- Object under TRE 408 and articulate
the improper purpose for which the evidence is being offered
- Object under TRE 403 factors
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OFFENSIVE USE
- Exclusionary rule does not apply
when the evidence is offered for any other relevant purpose
- The party objecting to the evidence
carries the burden of showing that it is being offered for the prohibited purpose
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POTENTIAL REASONS TO INCLUDE EVIDENCE IN FAMILY CASES
- Show either party’s state of mind to be
biased or prejudiced
- Bad faith vs. good faith
- Flexible vs. inflexible
- Reasonable vs. unreasonable
- Concerned with best interests of
child vs. self interests
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POTENTIAL REASONS TO INCLUDE EVIDENCE IN FAMILY CASES
- Interest of a party
- Impeach a party’s motives
- Demonstrate that the attorney fees
incurred were or were not necessary
- Demonstrate that the attorney fees
incurred were or were not reasonable
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PRACTICE TIPS FOR OFFENSIVE USE
- Request client’s timely acceptance of
any settlement offer received or approval of a good faith counter‐offer
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PRACTICE TIPS FOR OFFENSIVE USE
- Request client’s approval of good faith
settlement offer that emphasizes the best interest of the child, flexibility, fairness, and reduction of litigation costs
- Establish a time line with offers
- Pre‐litigation or soon after filing
- Post‐discovery
- Post‐mediation and before trial prep
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PRACTICE TIPS FOR OFFENSIVE USE
- Respond to TRE 408 objection by
articulating the permissible purpose for which the evidence is being offered
- Objecting party carries the burden to
show that the evidence is being
- ffered for the prohibited purpose
- No abuse of discretion to admit
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HOW CAN TRE 408 HELP ME HELP YOU? PREFERABLY TO SETTLE CASE, BUT IF NOT…
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- Hon. Jonathan M. Bailey