§ 27-408 — Rule 408. Compromise and offers to compromise

Nebraska § 27-408

• Jurisdiction: Nebraska
• Ch. 27: Courts; Rules of Evidence

Text

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Legislative History

Source: Laws 1975, LB 279, § 18. Annotations: 1. Evidence inadmissible 2. Evidence admissible 3. Miscellaneous 1. Evidence inadmissible An admission against interest concerning an element of the disputed claim is not an exception to the general inadmissibility of conduct or statements made in settlement negotiations. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). Conduct or statements made in settlement negotiations are not admissible for another purpose to impeach a prior inconsistent statement. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). If a statement violates the Nebraska Evidence Rules governing compromise and offers to compromise, a trial court does not have discretion to admit the statement. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). A notice of acquisition sent to a landowner prior to beginning condemnation proceedings constitutes a privileged communication during statutorily required negotiations and, thus, may be excluded pursuant to this section. In re Application of SID No. 384 of Douglas County, 259 Neb. 351, 609 N.W.2d 679 (2000). Although evidence of insurance is admissible for some other purposes under section 27-411, where evidence is directed solely at showing the amount for which a party settled with its insurer and where there is no showing that they had represented the value of the damaged and discarded products to be less than was claimed in the suit or for which it obtained judgment, the evidence is an inadmissible compromise or settlement pursuant to this section. Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993). Agreement on less than all issues of a dispute that is being negotiated will normally be treated as an offer to compromise under this section. Pribil v. Koinzan, 11 Neb. App. 199, 647 N.W.2d 110 (2002). 2. Evidence admissible Documents are not immunized from admissibility merely by being strategically presented in the course of compromise negotiations, and a fact presented during compromise negotiations is not immunized if it was obtained from sources independent of the compromise negotiations. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). 3. Miscellaneous Witnesses' bias affects the reliability of their testimony at trial. State v. Brown, 317 Neb. 273, 9 N.W.3d 871 (2024). A court's determination of preliminary questions of fact conditioning the applicability of the exclusionary rule set forth in this section are reviewed for clear error. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). The exclusion set forth in this section does not distinguish between offers to settle and admissions of fact made during settlement negotiations. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). Whether a particular writing, conduct, or statement is made in or a product of compromise negotiations is largely a question of fact. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). Any relevance to witness' testimony concerning status of her husband's lawsuit and compromise settlement with plaintiff in current suit was outweighed by the danger of unfair prejudice, confusion, or misleading the jury. London v. Stewart, 221 Neb. 265, 376 N.W.2d 553 (1985).