Undisputed: Court Of Appeals Of Tennessee Finds Statements Made During Court-Ordered ADR Covered By Rule 408
Like its federal counterpart, Tennessee Rule of Evidence 408 provides that
Evidence of (1) furnishing or offering to furnish or (2) accepting or offering to accept a valuable consideration in compromising or attempting to compromise a claim, whether in the present litigation or related litigation, which claim was disputed or was reasonably expected to be disputed as to either validity or amount, is not admissible to prove liability for or invalidity of a civil claim or its amount or a criminal charge or its punishment. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence actually obtained during discovery merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution; however, a party may not be impeached by a prior inconsistent statement made in compromise negotiations.
So, does Rule 408 cover statements made during court-ordered ADR? According to the recent opinion of the Court of Appeals of Tennessee in Andrews v. Andrews, 2010 WL 3398826 (Tenn.Ct.App. 2010), the answer is “yes.”
is a divorce case. The plaintiff husband is a successful physician and the defendant wife is a stay-at-home mother. They have one minor child. After twelve years of marriage, the husband left the marital home and filed for divorce. The wife counter-claimed for divorce, and protracted and contentious litigation ensued. The initial trial judge appointed a guardian ad litem and an attorney ad litem. After several trial judges recused themselves, a senior judge was assigned. After nearly three years of dispute, the case proceeded to trial. The trial court granted a divorce to the wife; it found that she was economically disadvantaged but capable of partial rehabilitation, and that the husband had the ability to pay spousal support. The wife was awarded alimony in futuro, rehabilitative alimony, attorney fees as alimony in solido, and discretionary costs. The husband appeal[ed] the award of alimony, attorney fees, and costs.
The Court of Appeals of Tennessee ended up affirming the trial court’s decision but not until after it noted an evidentiary error made by the trial court. According to the Court of Appeals, at one point, the guardian a litem “testified about her ‘day-long’ meetings with Wife, her lawyers, and the Son’s therapist to mediate parenting disputes….” In response, the “Wife’s attorney objected to the GAL’s testimony based on Rule 408 of the Tennessee Rules of Evidence, excluding evidence related to settlement or compromise negotiations.” The trial court overruled this objection, concluding, “I certainly don’t think the conversation of the guardian ad litem falls under 408.”
The Court of Appeals of Tennessee found that this ruling was erroneous, noting that “evidence of “conduct or statements made in the course of Rule 31 ADR Proceedings” is inadmissible. Tenn. R. Sup.Ct. 31, § 7 (referencing Rule 408).” Indeed, here is the text of Tenn. R. Sup.Ct. 31, § 7 :
Evidence of conduct or statements made in the course of Rule 31 ADR Proceedings and other proceedings conducted pursuant to an Order of Reference shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408.
-CM