Most practitioners believe it axiomatic that what they do, say or communicate to adversaries in connection with settlement negotiations will not be used as evidence against their clients’ interests in some proceeding. This assumption sometimes leads to a kind of smugness or comfort zone that loosens lips and finds lawyers, their experts, consultants and others generating communications, reports or other materials that are given to the adversary in order to further the compromise negotiations. Smugness invites peril, however, since the evidentiary rule offering protection against admissibility of settlement communications is sprinkled with exceptions and caveats. Moreover, case law sometimes confirms gaps in the assumed mantle of protection. These factors should induce caution about what one says, writes, or does during settlement talks.

In New York state courts, CPLR §4547, titled “Compromise and offers to compromise,” prohibits admission of any evidence of settlements, compromises or offers to compromise to prove either liability or invalidity of a claim or amount of damages, and any statements made during settlement negotiations. CPLR 4547 also says: “Evidence of any conduct or statement made during compromise negotiations shall also be inadmissible.” But evidence which is “otherwise discoverable” is not required to be excluded “solely because” it was presented during the course of compromise negotiations. Furthermore, admissibility of such evidence is not limited “when it is offered for another purpose” such as proving bias or prejudice of a witness, among others.

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