Zigner
Well-Known Member
Why don't you explain why you think the rule doesn't say what you're being told it says?
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Copyright Being sued for copyright and not sure what to do
- Thread Starter Daniel Bachelor
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PayrollHRGuy
Well-Known Member
Beat me to it.
zddoodah
Well-Known Member
Why? I've read it several dozen (if not more a hundred) times over the last quarter century.
Rule 408 says, "Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority."
This pretty well directly contradicts your assertion that "[t]o make any offer to settle is an admission of guilt." Of course, you'll probably say that you weren't speaking of admissibility and that you were simply saying that the other side would interpret an offer as an "admission of guilt." In that regard, it's certainly possible that the other side might interpret it as such. However, as "Tax Counsel" explained, no lawyer who knows what he/she is doing would view it that way. And, in any event, if if the other side interprets it as such, it would be meaningless, because the only thing that counts is admissibility.
At no time did I ever say that an offer to settle was an admission that was admissible in court. Did I? I was speaking about between plaintiff and defendant that would bolster plaintiff's position in negotiations. And I also said that an offer before an answer to the complaint is premature unless (implied) the defendant knows he would likely lose the case.
Don't waste you time explaining that an offer to settle before the answer is filed is to save the expense of defending against the complaint.
Under no circumstances would I ever offer to settle a lawsuit based on the complaint unless the allegations were true and I had no defense.
Don't waste you time explaining that an offer to settle before the answer is filed is to save the expense of defending against the complaint.
Under no circumstances would I ever offer to settle a lawsuit based on the complaint unless the allegations were true and I had no defense.
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Zigner
Well-Known Member
Tax Counsel
Well-Known Member
Not at all. Whatever gave you the idea that simply making an offer to the other side before or at the time a complaint is filed violates the rules of professional conduct? It's certainly not a "type of extortion". You apparently don't know what extortion is, or at the very least do not know what the crime of extortion is in those states that have that crime. In my state, extortion involves performing an illegal act or threatening to perform an illegal act to induce another to act against his will. I think it should be pretty obvious that simply making an offer is not an illegal act.
That's what YOU would do. It's a mistake to assume that what you would do is what everyone else would do or even what they should do. Your inflexible position could end up costing you money. That's your choice to do that, but I've had more practical minded clients make different decisions.
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zddoodah
Well-Known Member
Well there is plenty of case law that says otherwise in many states. Attorneys have been held to civil extortion by asking for settlement before the case is heard. In some states the attorneys claim the letter (or speech) is protected by litigation privilege but more often than not the courts find that it was civil extortion as a matter of law. Of course the facts matter. But your blanket statement is false.
I will leave out the sophomoric personal replies (including yours) that have become so prevalent on this site and stick to the facts.
PayrollHRGuy
Well-Known Member
Cite?
Tax Counsel
Well-Known Member
I'm calling BS on this one. Can you provide me even ONE such citation to a case where simply offering a settlement before "a case is heard", without more, was held to be extortion in any state? I'm betting you can't as that would not meet the definition of extortion in any state.
zddoodah
Well-Known Member
And yet you chose not to cite a single such case. Given your history of posting wrong information (in this thread alone), no one's going to accept what you say without citations.
There's no such thing as "civil extortion." There are tons of published cases in which folks sued for "civil extortion," but I've never heard of one that actually recognized a civil cause of action for it. By way of example only, the California civil jury instructions (all 3,424 pages of annotated instructions) contain only a single use of the word "extortion." CACI 370 (Common Count: Money Had and Received) (quoting Minor v. Baldridge, 123 Cal. 187, 191, 55 P. 783 (1898)).
More often than not? Please cite the source for this statistical conclusion.
PayrollHRGuy
Well-Known Member
I'm thinking @welkin wouldn't know case law if it bit him on the arse.
Tax Counsel
Well-Known Member
No, I don't lose. That case does not show that simply offering a settlement — without more — of a matter pre litigation is extortion. If you read the case carefully (and I'm guessing you didn't) the problem for the attorney here was not simply offering to settle a claim pre litigation. No, what the attorney did was go on to threaten public exposure of the claims against the party and also threatened to conduct an "in depth investigation" of all manner of things and report any wrongdoing found to various government agencies. It was that additional act of threatening public exposure and reports to government agencies that turned it into extortion. Any good attorney in California should know not to cross that line. In short, it wasn't the offer of settlement that was the problem. It was the threats that the attorney added to it that was the problem. As the court said:
At the core of Mauro's letter are threats to publicly accuse Flatley of rape and to report and publicly accuse him of other unspecified violations of various laws unless he "settled" by paying a sum of money to Robertson of which Mauro would receive 40 percent. In his follow-up phone calls, Mauro named the price of his and Robertson's silence as "seven figures" or, at minimum, $1 million. The key passage in Mauro's letter is at page 3 where Flatley is warned that, unless he settles, "an in-depth investigation" will be conducted into his personal assets to determine punitive damages and this information will then "BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT.... [¶] Any and all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find." This warning is repeated in the fifth paragraph: "[A]ll pertinent information and documentation, if in violation of any U.S. Federal, Immigration, I.R.S., S.S. Admin., U.S. State, Local, Commonwealth U.K., or International Laws, shall immediately [be] turned over to any and all appropriate authorities." Finally, Flatley is warned that once the lawsuit is filed additional causes of action "shall arise" including "Defamatory comments, Civil Conspiracy, Reckless Supervision" which are "just the beginning" and that "ample evidence" exists "to prove each and every element for all these additional causes of action. Again, these actions allow for Punitive Damages."
(Bolding added.) Note in particular the first sentence that I put in bold. The threats were the problem, not the offer of settlement.
So again, I ask you, do you have a case in which just offering a settlement, without more, was held to be extortion? I'm betting you don't. Sure, if the attorney does something else along with the offer, like making threats or putting a gun to the head of the other party, that's additional act may make it extortion or some other crime. But your assertion was that just the settlement offer itself is extortion, and it is that assertion that I say is BS.
No, that was your assertion by adding the word simply demanding settlement didn't amount to extortion. I said that the facts of the offer matters.
Here is my original question:
Any good or bad CA attorney knows that once a lawsuit is filed it becomes a matter of public record. So if you demand settlement before the suit is filed then the threat to make the matter public is implied.
Why would you say that? I know exactly what the case was about and what the CA supreme said about it.
Perhaps it is you that didn't read the case carefully.
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Zigner
Well-Known Member
At NO point, prior to this attempt to change the past, did you say that the facts of the offer matter.
Tax Counsel
Well-Known Member
No, it is not implied. If a settlement offer is made without some overt threat or other illegal action it will not amount to extortion. Good lawyers know how to craft settlement offers that will not cross that line. And it starts by not including illegal threats along with your offer of settlement. The attorney would have been OK had he simply told the defendants "We offer to settle the claim our client has against you for $X. This offer is open until [insert date]." Had he done that and not tacked on the threats, there would be no extortion and no violation of the rules of professional conduct.
I say that because I asked your for a case in which a settlement offer, without more, would be extortion. That is not what you provided. You provided a case where there was more than just a settlement offer — the lawyer made threats of public exposure and threats of reporting things to government agencies. It was those threats, and not the offer of settlement, that resulted in the extortion problem. If you had read the case closely I think you have seen that distinction. That distinction certainly jumped out to me when I read it. If you can't see it, then I don't know what to tell you.
Tax Counsel
Well-Known Member
And that is the key, isn't it? That, and of course the applicable federal and state laws and rules. But your assertion before was that ANY offer made pre-litigation would not be allowed, that it would be extortion and/or a violation of the rules of professional conduct. But that is clearly not the case. I can understand you wanting to back off that unequivocal stand now and I commend you for at least conceding that much.
I quoted it from post #48.
I never said that. If that was the way you remember it then quote my saying that and what post # it was in.
What I did was ask a question.
What assumptions you or other member made is not my problem. I understand that you wanted to prove me wrong. I'm used to that on this site. But don't put words in my mouth.
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