This note will explore the concept of compromise and the public policy in furtherance of compromise and settlement, and then discuss whether Rule 408,in its current form, is maximizing its potential to effectively serve that public policy. The note concludes that an amendment extending Rule 408's protective reach to exclude a party's prior inconsistent statements in compromise negotiations from admission into evidence for impeachment purposes would strengthen the inducement to settle claims without erecting any new substantial obstacles in the way of the truth-finding process. The central rationale is that, if the laws permit compromise negotiations to become arenas where a party could risk a potential coup de grace to its case, this risk would weigh against a party's initial decision to engage in compromise and thus effectively undermine the public policy encouraging settlements.
Fred S. Hjelmeset,
Impeachment of Party by Prior Inconsistent Statement in Compromise Negotiations: Admissibility under Federal Rule of Evidence 408,
43 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol43/iss1/9