Can I negotiate a claim made against me with a legal adversary without concern my communications will be used against me?
14 January 2022
Not completely. You should be safe from having the communications used to establish liability of the claim (at issue) against you, but the communications can be used for other purposes.
In a general sense, the law and society desires to, and does, encourage settlement of legal claims. This is also for the obvious reasons that society has an interest in people avoiding the time, expense, and stress that contested litigation, especially trials, brings. Not to mention the congestion to the court system that is sought.
The general coverage offered in layman’s terms is that if you make a settlement offer, such as offering a particular sum of money, to settle the legal claim, that the other side can’t present that settlement offer into evidence at the trial to show you were liable/responsible for the claim. This is a long-standing rule, and it the policy is well expressed here: “[t]his rule is founded in policy, that there may be no discouragement to amicable adjustment of disputes, by a fear, that if not completed, the party amicably disposed may be injured” (quotation and citation omitted). Strauss v. Skurnik, 227 Mass. 173, 175 (1917). Specifically, the information cannot be used “to prove or disprove the validity or amount of a disputed claim.” Mass. R. Evidence 408(a); Fed. R. Evidence 408; accord Fibey v. Carr, 98 Mass. App. Ct. 455, 457 (2020); Cottam v. CVS Pharmacy, 436 Mass. 316, 327-28 (2002).
However, one still should be careful in what they say in settlement offers, as they can be used for other purposes. For example, in the case of Slive & Hanna, Inc. v. Massachusetts Commission Against Discrimination communications concerning settlement were used as a basis to establish an employer illegally retaliated against a former employee for his filing of a complaint against the employer. 100 Mass. App. Ct. 432, 434 (2021). In Slive & Hanna, Inc. the employer, after seizing one of the former employee’s cars to enforce an unpaid loan, stated to the employee’s ex-wife that “if she wanted the car back, [the former employee] should drop his MCAD claim” and continued expressing that only way the car would be returned was if she convinced the former employee to drop his MCAD claim. Id. This was found to be illegal, and regardless of the propriety of the employer’s actions and if they can be debated, the point here is that the settlement discussions were used against the employer.
The author has seen the use of settlement offers be offered to establish the true amount of a claim for procedural amount purposes to try and get the claim dismissed without prejudice. Procedural amount has to do with the amount in controversy that certain courts are supposed to handle, which translates into which court someone is supposed to file their claim. Basically, if someone files in the wrong court because their claim is not consistent with the amount in controversy amounts of the court, the case can be dismissed without prejudice and the person has to file again in the right court to pursue their claims. Sometimes settlement offers include statements inconsistent with the amounts that a party represents to the court that is in dispute.
Overall, the author does not discourage the entering of settlement negotiations. But does caution to be careful when communicating in them.
Finally, the author notes that there are other ways to attempt to settle a claim where even more protection for the communications between the parties is sought, such as sensitive cases or any type of case where people want to be careful. In the event you seek to settle a case or resolve a dispute, feel free to contact this office to explore the ways.