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WKT.JUry (1)

Often times in the practice, I hear a client say something like, “Well, the jury will at least decide to award the amount that the insurance company offered, right?”.

Since that’s not a safe assumption, let’s talk about why.

Usually, before a case gets to trial, settlement negotiations have indeed gone on between the injured party and the insurance company for the person whose conduct is alleged to have caused harm. One would think, logically speaking, that the jury would of course get to hear at trial about (and factor into its deliberations) the parties’ settlement discussions. However, for better or for worse, that is simply not the case.

When cases go to trial, some information is admissible and can be considered by the jury, and some cannot. This is because of the Washington, Oregon, and Federal Rules of Evidence.

One aggressively enforced rule is Evidence Rule 408, which prohibits introduction into evidence at trial of any offers of compromise or other settlement negotiations.

Lawyers have the evidence rules drilled into them in law school, and often forget that most people would reasonably expect that all pertinent information can be provided to the factfinder before it makes its decision.

But because of Evidence Rule 408, the jury won’t know, for example, that the party who brought the lawsuit was offered a certain amount to settle.

Nor would it be permissible for the jury to be told that only a ridiculously low offer was made on behalf of the person who was sued.

They can’t be told that either party refused to offer more, or accept less.

What we were told in law school, as the justification for this “settlement discussions aren’t admissible” rule, is that the courts don’t want to “chill” parties from engaging in settlement negotiations. And if litigants and their insurers knew that jurors could be told how much had been offered or rejected in settlement talks, they might be reluctant to engage in candid talks. The concern of the jurists was and is that, if that were so, fewer cases would settle, causing the courts to get more jammed up and justice to be less efficiently administered. That is the theory, anyway. And now the law is the law, and it is set in stone. The jury will not hear about settlement negotiations in American courts.

So what is the short answer to the question, “Won’t the jury at least give me the amount that the insurance company offered?”

No, they won’t. The jury will not be told – and won’t have a clue – how much money was offered or refused during settlement negotiations. So the insurance company‘s last offer will not be the starting point for the jury’s deliberations.

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About the Author

William K. Thayer

Bill Thayer is one of the founding partners of the Schauermann Thayer Jacobs Staples & Edwards law firm. Bill is licensed in both Oregon and Washington, and actively practiced law from 1980 to 2021. He is now "of counsel" with Schauermann Thayer and serves as an arbitrator when appointed by the courts or litigants. During his more than 40 years of active law practice, Bill advised and represented clients in personal injury and wrongful death claims and litigation, including automobile collision, motorcycle, bicycle, and pedestrian injury and death cases, dog bite cases, construction site injury claims, and a myriad of other types of injury and death claims. While many claims were settled through negotiation or mediation, Mr. Thayer litigated, arbitrated and/or tried to verdict many cases for his clients. He continues to occasionally be appointed by courts and other lawyers to serve as an arbitrator of tort claims. Bill enjoys writing as one of his varied recreational interests when he is not working.

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