By Jedidiah McKeehan

It may happen that you have a case that is proceeding to trial. Let’s say it is a contract dispute case. During the case, you may offer to settle by paying the other side $20,000.00. Then they reject this offer. If the case proceeds to trial, the other side cannot bring up that you offered $20,000.00 during the trial. They are specifically prevented from doing so.

Why is that? Tennessee Rule of Evidence 408 states, “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.”

That means that if you have offered to settle a case, that cannot be used against you and there are many reasons why a settlement proposal might be made. One of the primary reasons you make a settlement offer is that you might lose if you go to trial. If that is a possibility, then it makes sense to offer some settlement. Further, there is also the cost of going to trial. Your attorney must spend time preparing for trial and they will be charging you to do so. Avoiding spending money on your attorney is one reason that people settle cases.

One big reason I encourage people to settle is the simple peace of mind of not having a lawsuit hanging over their heads. Personally, I am a big believer in not having stressors take up space in your brain, so that is another reason you may want to settle. Regardless of the reason, you may make a settlement proposal, the rules of evidence state that settlement negotiations are inadmissible.

Settlement negotiations can occur at many points throughout a case and they can be done so the whole case is resolved or in a way that only a small part is resolved. In letters which I send out, if it involves anything that resolves any part of a case, then I write in big bold letters across the top, “TENNESSEE RULE OF EVIDENCE 408 COMMUNICATION.” That way it is abundantly clear that the contents of the letter I am sending are not to be used against my client because we have clearly stated that the contents of the letter are inadmissible. I actually do not think that the rules of evidence require that I put this across the top of the letter for the contents of it to be considered inadmissible, but I figure it’s better to be safe than sorry.


Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties.  He works in many areas, including divorce, custody, criminal, personal injury, and estate planning. Visit for more information about this legal issue and other legal issues.