Alaska R. Evid. 408 commentary

This rule, like the common law doctrine, operates to exclude

evidence of an offer to compromise a claim when offered to

prove the validity, invalidity or amount of the claim. Under the

prevailing common law view, statements of fact made

independently of the compromise offer—i.e., statement not

inextricably bound up in the offer to compromise—can be

admitted for any relevant purpose. But this exception can be

artfully dodged by the attorney who specifies that all factual

statements are hypothetical, or who states in advance that the

discussion is “without prejudice.” See Annot., 15 A.L.R. 3d 13

(1967). See also Alaska R. Civ. P. 43(i) (2) (superseded by this

rule).

This rule expands the scope of protection afforded

compromise negotiations by eliminating the common law

exception and making statements of fact and conduct which

are made or which occur during settlement negotiations

inadmissible whenever an offer to compromise would be

excluded. See California Evidence Code §§ 1152, 1154 for

similar provisions. In addition to eliminating the need to talk

continually in hypothetical terms, this change promotes the

major policy behind the rule—to encourage settlement of

disputes. It also avoids preliminary factfinding as to what was

said during negotiating sessions, i.e., whether statements were

made in hypothetical or “without prejudice” form.

The Advisory Committee’s comment to the Federal Rule

after which this rule is modeled cites two rationales for a rule

of exclusion. (1) The evidence is irrelevant, since the offer may

be motivated by a desire for peace rather than from any

concession of weakness of position. The validity of this

position will vary as the amount of the offer varies in relation

to the size of the claim and may also be influenced by other

circumstances. (2) A more consistently impressive ground is

promotion of the public policy favoring the compromise and

settlement of disputes. McCormick § 274, at 663. While the

rule is ordinarily phrased in terms of offers of compromise, it

is apparent that a similar attitude must be taken with respect to

a completed compromise when offered against a party thereto.

This latter situation will not, of course, ordinarily occur except

when a party to the present litigation was compromised with a

third person.

Unless the amount of the claim or the claim itself is in

dispute, the policy of encouraging freedom of communication

with respect to compromise is not advanced. Hence the rule

does not apply when the effort is to induce a creditor to settle

an admittedly due amount for a lesser sum. McCormick (2d

ed.) § 274, at 663. See also Uniform Rules 52 and 53 for

similar provisions. An offer to pay the full amount in dispute is

admissible as an unconditional acknowledgment of liability

because it is not conditioned on a compromise. See Saxton v.

Harris, 395 P.2d 71 (Alaska 1964).

This Rule governs whether or not any compromise that is

reached is carried out. Some common law jurisdictions admit

completed settlements as evidence if they are not successful in

terminating litigation. Nothing in this rule prevents the use as

evidence of settlement agreements in subsequent contract

actions, however.

This rule differs from the federal rule by explicitly providing

that statements made during negotiations must not be used for

impeachment as prior inconsistent statements of a party. This

further protection is required in order to encourage free and

open negotiations and to foster settlements. It may be

necessary to “concede” issues to an opponent to advance

negotiations which are not issues that one would readily

concede for purposes of proving liability. If impeachment is

allowed, the common law requirement of communicating in

hypothetical terms would, for all practical purposes, be

reinstated. Unless the parties to the negotiation are insured that

they will not prejudice the merits of their respective cases,

communications will be guarded. As recognized in Rule 410,

admissibility of guilty pleas later withdrawn or offers to plead

guilty for purposes of impeachment would effectively stifle the

open communication needed to promote compromise. The

same is true in civil cases.

Where statements made in compromise negotiations are not

used to advance litigation relating to the validity, invalidity or

amount of the underlying claim admission is proper. Collateral

uses such as those mentioned in the final sentence of the rule

are supported by existing authorities. E.g., proving bias or

prejudice of a witness, see Annot., 161 A.L.R. 395 (1946);

negativing a contention of lack of due diligence in presenting a

claim, 4 Wigmore § 1061. See also Alaska R. Civ. P. 68 in

which evidence of an unaccepted offer of judgment is admissible on the collateral issue of determining costs. An effort to

“buy off” the prosecution or a prosecuting witness in a

criminal case is not within the policy of the rule of exclusion.

This rule further provides that evidence which would

otherwise be discoverable is not rendered inadmissible merely

because it was presented during negotiations. A party should

not be able to immunize documents by once revealing them; no

policy is advanced by such protection. Where statements made

during negotiations lead to the discovery of relevant evidence

it shall not be rendered inadmissible merely because the

information obtained could not have been introduced into

evidence in the form of statements made during negotiations.