TIPS FOR PRESERVING CONFIDENTIALITY IN DIVORCE SETTLEMENT DISCUSSIONS
Evidence Code Section 1152:
How to Ensure That Family Law Based Settlement Offers Remain Confidential
Evidence Code section 1152 exists to ensure that litigants can safely have the discussions that settle
cases of every flavor. It is not per se directed to marital disputes,
and for instance makes reference to insurance related claims and other
civil actions. Appellate decisions have enlarged its purview. It protects
the content of any marital settlement-related communications by ensuring
the confidentiality of offers to settle and if done properly the preliminary
conversation, and may be particularly useful when attempting to resolve
property division and spousal support disputes.
It is imperative that the integrity of negotiations be maintained. If offers
were not privileged from disclosure there would be strong disincentives
against being reasonable - spouses would be too worried that these offers
would become a ceiling in terms of what a family court judge might decide,
if she or he later learned what the parties felt was minimally acceptable.
That is a valid concern, because in my experience when a judge believes
that a party was willing to accept a lesser outcome, even though they
are now demanding something much larger, they will sometimes scale down
their awards to satisfy those expectations. This fact of human nature
is illustrated by rules that trial judges should not preside over mandatory
settlement conferences for cases that they may later adjudicate - the
consequences for negatively influencing the trier of fact by candidly
exposing the weaknesses in a party's own case are too severe (and
yet often necessary), and it is not realistic to believe that most people
can manage often unconscious biases that may form during such conferences.
Still, it is common practice in some jurisdictions, especially where personnel
and resources are limited, for judges to wear a settlement hat one day
and a judge's hat the next. I think it is a bad idea although in special
situations I have allowed it to occur - but only when I was confident
that what would be disclosed hurt the other side's case, and not my own.
Evid. Code section 1152 protects the content of any settlement-related
communications, whether written or oral. In written communications most
attorneys insert in the subject line (RE:...) the words "Confidential
Evidence Code Section 1152 Settlement Discussion."
This is a wise practice. Written offers leave a trail that verbal offers do not, clearly memorializing
the intention to maintain the confidentiality privilege, and there is
no question where you've identified the letter contents in this way.
But keep in mind that you can outsmart yourself if you use this device
too liberally - it may be that you will want to show the judge the other
party's response (assuming yours was not a true settlement offer),
but this won't be allowed (yikes, maybe now you've crossed the
line!) because of how you initially framed the dialogue!
Offers contained within conversations may be a little more ambiguous to
characterize, but judges tend to cut off someone who seems about to disclose
a settlement related discussion. If you anticipate that the other party
may blurt out something in open court that they should not, be prepared
to object even before they finish their sentence - but remain calm and
dignified. Where parties or their attorneys violate confidentiality in
the pleadings, a written evidentiary objection and request to strike the
statement may be appropriate, and possibly even a
Family Code section 271 sanction's request.
How to respond is always a dilemma, because any form of objection guarantees
that the very thing you are trying to block gets more attention and emphasis
than otherwise. Possibly the smarter course may be to ignore it!
CALIFORNIA EVIDENCE CODE
EVIDENCE AFFECTED OR EXCLUDED BY EXTRINSIC POLICIES
Evidence Code Section 1152
(a) Evidence that a person has, in compromise or from humanitarian motives,
furnished or offered or promised to furnish money or any other thing,
act, or service to another who has sustained or will sustain or claims
that he or she has sustained or will sustain loss or damage, as well as
any conduct or statements made in negotiation thereof, is inadmissible
to prove his or her liability for the loss or damage or any part of it.
(b) In the event that evidence of an offer to compromise is admitted in
an action for breach of the covenant of good faith and fair dealing or
violation of subdivision (h) of Section 790.03 of the Insurance Code,
then at the request of the party against whom the evidence is admitted,
or at the request of the party who made the offer to compromise that was
admitted, evidence relating to any other offer or counteroffer to compromise
the same or substantially the same claimed loss or damage shall also be
admissible for the same purpose as the initial evidence regarding settlement.
Other than as may be admitted in an action for breach of the covenant
of good faith and fair dealing or violation of subdivision (h) of Section
790.03 of the Insurance Code, evidence of settlement offers shall not
be admitted in a motion for a new trial, in any proceeding involving an
additur or remittitur, or on appeal.
(c) This section does not affect the admissibility of evidence of any of
(1) Partial satisfaction of an asserted claim or demand without questioning
its validity when such evidence is offered to prove the validity of the claim.
(2) A debtor's payment or promise to pay all or a part of his or her
preexisting debt when such evidence is offered to prove the creation of
a new duty on his or her part or a revival of his or her preexisting duty.