Personal injury attorneys enter into settlement negotiations with insurance defense trial attorneys all the time. When an experienced personal injury attorney has enough information to make a serious settlement demand, he or she presents the information to the insurance company. The conversations, or correspondence, are on behalf on behalf of their respective clients. The law has always been clear that none of the conversations, correspondence or even the fact that there has been communication, would be allowed into evidence. The jury hears the facts of the case, and not the respective sides’ positions on the case. It’s a simple “rule of evidence.”
This rule was challenged in a federal employment discrimination case Boston; the judge allowed extensive testimony about the settlement negotiations, notwithstanding the rule. In the federal case, Ray v. Ropes & Gray, the judge allowed testimony of the defendants about the settlement demands of Attorney John Ray.
According to the decision, Attorney Ray was an associate attorney at Ropes and Gray. When he was denied partnership, he alleged that the reason was because he was black. After he was denied partnership (or actually asked to leave the associate position) he asked for letters of recommendation from two partners in the general litigation department. The two partners agreed. Then Attorney Ray asked for an extension of the severance package. The firm agreed so long as they could get a release from all liability. Attorney Ray’s response was to file a discrimination complaint, asking for $8.5 million. When Attorney Ray subsequently asked for the letters of recommendation, the attorneys now refused.
The Court’s Reasoning for Allowing Settlement Numbers into Evidence
The Court found that the demand for $8.5 million was “coupled as it was with the threat to file a discrimination complaint, as an attempt at extortion, relevant to the issue of bias.” The Court pointed out that the demand went up to $10 million, and to $21.5 million and up to $40 million over the next several months. The Court pointed out that Attorney Ray also threatened bar discipline and criminal prosecution against the Ropes partners.
Given that Attorney Ray was making $400,000 per year at Ropes & Grey and would have made a multiple of that each year for the rest of his career if made partner, we don’t see that the demand in dollars was outrageous. But we don’t practice employment law. We do see that threats to the bar and criminal prosecutions are severe, but if there is no basis to a claim the bar and criminal prosecutors would not file one.
However, there is case law in Massachusetts that says the court may allow settlement discussions into evidence if the witness’s motivations for testifying about the settlement numbers are relevant. Here, perhaps the partners who declined to provide letters of recommendation, after previously agreeing, were motivated by their perception of the settlement demand.
Again, we see no reason for the jury to hear about settlement negotiations, notwithstanding the partner’s “motivation.” The initial figure is simply a few years of “salary” for a partner at Ropes and Gray and not an outrageous demand. It puts a “chilling effect” on settlement negotiations.
Experienced Personal Injury Attorney
Personal injury victims need to retain the services of an experienced personal injury attorney so that a situation like this employment discrimination case does not remove the focus of the injury onto the settlement negotiations.