- F.R. Tripler & Co
Pierce filed against Tripler on the basis of age discrimination
for failure to promote him to a general manager position.
Pierced file a claim with the Employment Opportunity Commission
alleging age discrimination.
The Df attorney called the Pl - attorney and offered Pierce a
financial position at their other subsidiary.
Pierces attorney tried to get confirmation if the position was
offered in exchange for release of the claim. After several
confusion communications between the two attorneys, Pierce then
initiated a lawsuit.
Df Argued We offered Pierced a subsequent job offer
This offer took place in the course of settlement negotiations
and thus was inadmissible under FRE 408.
The offer was not unambiguously unconditional.
In order to show a failure to mitigate damages
The Evidence of the failure must first be admissible
Evidence that demonstrates a failure
to mitigate damages goes to the
"amount" of the claim and
thus, if the offer was made in the course of compromise
negotiations, it is barred
under the plain language of Rule 408.
Judge used FRE 104(a) to determine admissibility of evidence
Under Fed. R. Evid. 104(a) preliminary factual questions
concerning the admissibility of evidence, such as whether an
offer was made in the course of settlement negotiations, are to
be determined by the court.
FRE 408 Determining when an offer is made
When a party is represented by counsel, threatens litigation and
has initiated the first administrative steps in that litigation,
any offer made between attorneys will be presumed to be an offer
with the scope of the 408.
Filing a lawsuit.
When an offer is NOT made
Rule 408 does not protect offers to compromise made BEFORE a
claim of some sort is made.
Court - Party Seeking admission
Must demonstrate convincingly that the offer was not an attempt
to compromise a claim.
Df Argue We made the offer
There are consequences
If substance of negotiations were admissible at trial, many
attorneys would be forced to testify as to the nature of the
discussions that thus be disqualified as trial counsel.
No lawyer in a law firm would attend a negotiation session.
Even where the evidence offered favors the settling party and is
objected to by a party not involved in the settlement, Rule 408
bars admission of such evidence unless it is admissible for a
purpose other than 'to prove liability for or invalidity of the
claim or its amount