Photo by D. Degenhardt
On February 6th, 1840, that the Treaty of Waitangi was first signed between Maori and the British Crown. You can now visit the above-pictured Maori meeting house at the Waitangi Treaty Grounds. Apparently the figures with the protruding tongues there, the tekoteko, are a common Maori art feature to scare away bad guys.
Lawyers have symbols to ward off their own versions of evil spirits. One is Rule 408 of the Federal Rules of Evidence (which has an analog in the Minnesota Rules of Evidence and, I think, in every state (but don’t cite to me for that)).
It sometimes seems that litigators think one can intone this rule or put it in the subject line of an email or correspondence and, because these words are uttered, the tongues of one’s adversaries are forever stilled with regard to the content of the communications that follow underneath.
The nice Maori carvings were not sufficient to avoid the New Zealand Land Wars that followed after the treaty was entered into and Minnesota litigators need to be careful that they do not over-rely on their own magic words.
In an ERISA dispute now before U.S. District Court Judge Susan R. Nelson (D. Minn.), it would appear that plaintiff’s counsel may have made some damaging statements in the midst of what one might reasonably consider to have been in the nature of settlement discussions with the defendant. But, Judge Nelson found, the discussions did not concern the subject matter of the litigation. Rather, the discussions concerned issues related to resolution of a financial dispute for an earlier time period than what is at issue in the case before the court.
Clearly, plaintiff was eager to have his lawyer’s admissions on a key issue in the case suppressed one way or another. Plaintiff argued the statements were irrelevant, that they were inadmissible parol evidence, and, finally, he invoked the Rule 408 God to Judge Nelson. To no avail.
Practice pointer: The further lawyers stray from crystal clear and direct settlement negotiations and seek to silence their adversaries on damaging admissions in “settlement communications subject to Fed. R. Evid. 408,” the more likely the designation is wishful thinking rather than an impermeable shield.