Colo. R. Evid. 408

As amended through Rule Change 2024(18), effective October 2, 2024

Rule 408 - Compromise and Offers to Compromise

(a)Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b)Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

(Federal Rule Identical.)

CRE 408

Source: Entire rule amended and effective 9/27/2007.

Annotation Law reviews. For article "ADR: Explanations, Examples and Effective Use", see 18 Colo. Law. 843 (1989). For article, "Admissibility of a Party's Own Settlement Offer", see 21 Colo. Law. 1893 (1992). This rule applies to every offer of settlement and makes such offers inadmissible to prove liability. Therefore, the rule does not impose a condition on an offer of settlement. Further, an offer may be admissible under this rule for purposes other than to prove liability. Dillen v. HealthOne, L.L.C., 108 P.3d 297 (Colo. App. 2004). Whether the statements contained in a letter plaintiff's counsel had written were actually made in the course of a "settlement negotiation" or "compromise" is a question of fact, and since there was evidentiary support for the trial court's finding that the letter was part of an effort to compromise the plaintiff's claims, that finding is binding on appeal. H&H Distributors v. BBC Intern., 812 P.2d 659 (Colo. App. 1990). Even if the letter plaintiff's counsel had written constituted an "admission of fact", plaintiff's "admission" would be excludable under CRE 408 because it was made in a letter offering to settle the dispute. H&H Distributors v. BBC Intern., 812 P.2d 659 (Colo. App. 1990). A document entitled "Settlement Detail" was admissible because it was a status report for defendant's use in the ordinary course of business, not for the purpose of discussing settlement with plaintiff. Scott Co. of California v. MK-Ferguson, 832 P.2d 1000 (Colo. App. 1991). Situations in which someone acknowledges that a certain claim is valid or is valid to a certain extent, or statements to the effect: "I think your claim is worth 'X' number of dollars," are not offers within the meaning of CRE 408. Scott Co. of California v. MK-Ferguson, 832 P.2d 1000 (Colo. App. 1991). The threshold question, which is a question of fact for the trial court, is whether the conduct or statements were made in settlement negotiations, for if they were not, the rule is inapplicable. Scott Co. of California v. MK-Ferguson, 832 P.2d 1000 (Colo. App. 1991). Evidence supported trial court's finding and was binding on appeal that the document was admissible because it was a status report prepared for defendants' use in the ordinary course of business, not for the purpose of discussing settlement with plaintiff. Scott Co. of California v. MK-Ferguson, 832 P.2d 1000 (Colo. App. 1991). No error in admitting statements by plaintiff that a representative of defendants stated that he felt plaintiff's claims had merit in certain amount where court stated that situations in which someone acknowledges that a certain claim is valid or is valid to a certain extent, or statements to the effect: "I think your claim is worth 'X' number of dollars," are not offers within the meaning of this rule. Scott Co. of California v. MK-Ferguson, 832 P.2d 1000 (Colo. App. 1991).