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 TO S ETTLE C ASE , BUT IF NOT …
F ACTORS IN A WARDING A TTORNEY F EES Party A Party B • Unreasonable/Inflexible • Reasonable/Flexible • Motivated by Self Interests • Motivated by Child’s Interests • Bad Faith • Good Faith/Fairness • Nonresponsive • Communicative • Vengeful/Spiteful • Respectful/Courteous
T EXAS R ULE OF E VIDENCE 408 Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount.
T EXAS R ULE OF E VIDENCE 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 )
T EXAS R ULE OF E VIDENCE 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.
T EXAS R ULE OF E VIDENCE 408 ( CONTINUED ) • This rule also does not require exclusion when the evidence is offered 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.
I NTENT 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
D EFENSIVE U SE • 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
P OTENTIAL R EASONS TO E XCLUDE E VIDENCE IN F AMILY C ASES • 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
P RACTICE T IPS FOR D EFENSIVE U SE • 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
O FFENSIVE U SE • 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
P OTENTIAL R EASONS TO I NCLUDE E VIDENCE IN F AMILY C ASES • 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
P OTENTIAL R EASONS TO I NCLUDE E VIDENCE IN F AMILY C ASES • 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
P RACTICE T IPS FOR O FFENSIVE U SE • Request client’s timely acceptance of any settlement offer received or approval of a good faith counter‐offer
P RACTICE T IPS FOR O FFENSIVE U SE • 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
P RACTICE T IPS FOR O FFENSIVE U SE • 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 offered for the prohibited purpose • No abuse of discretion to admit
H OW C AN TRE 408 H ELP M E H ELP Y OU ? P REFERABLY TO S ETTLE C ASE , BUT IF NOT …
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
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