Rule 408. Compromise and Offers To Compromise

In a tort case, evidence of (1) a settlement with or the giving of a release or covenant not to sue to or, (2) furnishing or offering or promising to furnish or accepting or offering or promising to accept, a valuable consideration in compromising a disputed claim with one or more persons liable in tort for the same injury to person or property or for the same wrongful death shall not be introduced in evidence in a subsequent trial of an action against any other tortfeasor to recover damages for the injury or wrongful death. Upon the return of a verdict, the court shall inquire of the attorneys for the parties the amount of the consideration paid for any settlement, release or covenant not to sue, and shall reduce the verdict by that amount.

In any other case, 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. However, this rule does not require the exclusion of any evidence otherwise admissible merely because it is presented in the course of compromise negotiations.

This rule does not require exclusion when the evidence is offered for a purpose other than the proof of liability for or invalidity of the claim or its amount, 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.

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 408 by supreme court order dated April 20, 2017, effective July 1, 2017.

Federal Rule 408 is inconsistent with New Hampshire Superior Court Rule 32(d), would change substantive NH law, and would limit the openness of settlement discussions in some civil settings because the federal rule allows for the subsequent use of some civil settlement discussions in criminal cases. If New Hampshire were to adopt Federal Rule 408, a statement in a Securities and Exchange Commission civil securities fraud settlement negotiation would be admissible in a later prosecution for mail fraud. Statements in any mediation or settlement negotiation in a municipal or state regulatory proceeding would be admissible in a later criminal case. Categorical rules of exclusion operate like privileges to the extent that they exclude relevant, probative and usually truthful and reliable evidence. The reason for this interference with the truth-finding process is that there are other interests at stake-such as, in this instance, the interest in giving parties breathing room to have the frank discussions that are often necessary to compromise and settle cases.