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Last Post 25 Feb 2009 05:27 PM by  andbecke
R-08-0035 Petition to Amend Rules 408 Arizona Rules of Evidence
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AZStateBar
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19 Dec 2008 04:31 PM
    R-08-0035

    PETITION TO AMEND RULE 408, ARIZONA RULES OF EVIDENCE

    WOULD INCORPORATE RECENT AMENDMENTS TO FED. R. EVID. 408 PROHIBITING THE USE OF SETTLEMENT OFFERS FOR IMPEACHMENT PURPOSES AND CLARIFYING THAT THE RULE 408 PROTECTION MAY NOT BE WAIVED UNILATERALLY TO ALLOW A PARTY TO OFFER INTO EVIDENCE HIS OR HER OWN SETTLEMENT OFFERS.

    Petitioner:
    John Furlong
    Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 North 24th Street, Suite 200
    Phoenix, AZ 85016-6288
    602.252.4804

    Filed December 22, 2008

    ADOPTED as modified, effective January 1, 2010.
    Attachments
    andbecke
    Posts:

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    25 Feb 2009 05:27 PM
    Andrew J. Becke, Attorney at Law
    MURPHY, SCHMITT, HATHAWAY & WILSON, P.L.L.C.
    117 E. Gurley Street, 3rd Fl.
    Prescott, AZ 86301
    TELE (928) 445-6860
    FAX (928) 445-6488
    abecke@mshwlaw.com

    I would like to express my strong support for this change to Rule 408, Ariz. R. Evid. The adoption of the new federal rule would restore Rule 408 to its proper place in our rules of evidence.
    Hernandez v. State, 203 Ariz. 196, 52 P.3d 765 (2002), rendered Rule 408 a hollow shell in that offers to compromise became a weapon to impeach later inconsistent statements. Hernandez serves to actively discourage Plaintiffs from giving detailed explanations in demand letters for fear that any mistakes will be later used to impeach them. As Keith Swisher argued in his casenote on Hernandez, the effect is that parties will “offer as little factual information as possible during negotiations.” Keith A. Swisher, The Limits of Rule 408 After Hernandez, 35 Ariz. St. L.J. 1437, 1447 (2003). This application of the rule actively discourages settlement negotiations, which is the opposite of the rule’s intended effect.
    Additionally, Hernandez creates additional problems with notices of claim under A.R.S. § 12-821.01. A notice of claim is essentially a mandatory demand letter that must be filed within 180 days of the injury, often when facts are at the initial stages of investigation. As was the case in Hernandez, any erroneous factual assertions in the notice of claim letter can be later used to impeach a Plaintiff. This creates an incentive to provide the minimum amount of facts possible to comply with § 12-821.01, which thwarts one of the purposes of the statute: to facilitate settlement.
    A more thorough discussion of this can be found in Andrew Becke, Two Steps Forward, One Step Back, 39 Ariz. St. L.J. 247, 260-62 (2007).


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