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
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).