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  • Offers to Settle

    Quick question

    My understanding of Offers to Settle are that they are not viewed by the Judge until after the judgement has been rendered. I just received motion materials from the opposing party and he has included "my" Offer to Settle as an exhibit to "his" affidavit. Is this even allowed?

    Offer to Settle was generous but i thought it was not something that is usually shared with the Judge until after both parties have had an opportunity to argue their positions and received a Judgement.

  • #2
    Offers to Settle are only supposed to be divulged if there is a cost award or if the judge allows cost submissions.

    I would not say anything if you feel it is not prejudicial to you. I would leave it to the judge to strike it from the submissions.

    If you feel your Offer to Settle is prejudicial then the Rules disallow it being submitted.

    Hope this helps.

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    • #3
      Did a lawyer attach the Offer to Settle as an Exhibit?

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      • #4
        No, the party in question is self represented. But his former lawyer agreed to commission the affidavit and exhibits. So, one would assume his lawyer would have read through what he was signing off and raised it as an issue.

        Thanks for your help!

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        • #5
          You have to indicate 'Without Prejudice' in your offer to keep the judge's eyes off it.

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          • #6
            Yes, I did indicate "without prejudice" in the first line. But it was still included by the opposing party as an exhibit to his affidavit in support of his motion.

            The Judge has not set his eyes on it yet. But given that it is filed I suspect it will be part of the affidavit that is eventually read.
            Last edited by Nadia; 01-24-2013, 07:43 PM.

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            • #7
              He can attach anything he wants with his motion, including the crossword puzzle from today's paper. That doesn't mean the judge will allow it as admissible.

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              • #8
                Yah - that's real world - the judge is likely to read it. Kind of like how TV lawyers blab out 'inadmissable evidence', which the opposing counsel (ineffectually) objects to.

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                • #9
                  Originally posted by Nadia View Post
                  No, the party in question is self represented. But his former lawyer agreed to commission the affidavit and exhibits. So, one would assume his lawyer would have read through what he was signing off and raised it as an issue.

                  Thanks for your help!
                  And not so -- when I commission, I just confirm with the oath swearer that what is attached is a true copy.. I don't read the exhibits. See crossword puzzle as per Mess.
                  Start a discussion, not a fire. Post with kindness.

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                  • #10
                    The question is do I leave it in there and say nothing (it does demonstrate the effort I am trying to make to settle the dispute) OR do I request that it be striken from the record given that it was an Offer to Settle made on a without prejudicial basis only?

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                    • #11
                      IMHO always cover yourself and declare it inadmissible. If you say nothing, you are giving implicit consent. I have not been in this position though, so it is just an opinion.

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                      • #12
                        Make sure it attached as exhibit and not just at the end of your affidavit. If it is you should ask judge to strike other party document out. It very well may be that motion will be adjourned and party ordered to file corrected affidavit and another judge will have to do that motion...

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                        • #13
                          Maybe ask duty counsel if it is possible to have it completely removed from the record that the judge will see? I have no idea if this is possible, but might be worth a try.

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                          • #14
                            Originally posted by dinkyface View Post
                            Maybe ask duty counsel if it is possible to have it completely removed from the record that the judge will see? I have no idea if this is possible, but might be worth a try.
                            Nobody can remove anything from continuing record after it filed without court order...

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                            • #15
                              Thanks WD.

                              I have been asking for an adjournment and the opposing party has refused to consider. So, perhaps I can also use this as another reason why the motion should be adjourned to another day and heard by another Judge.

                              Even if I draw attention to the inadmissability of the "without prejudice" offer to settle in my response, the Judge will have already read the opposing party's affidavit in preparation for the hearing. Assuming of course that the Judge will read his materials first given that he is the moving party in this matter.

                              Any reasonable offer to settle will be prejudicial because it is made on the basis that you may not get the Judgement you want but are willing to accept far less in order to settle outside of court and avoid costly legal fees.
                              Last edited by Nadia; 01-24-2013, 09:43 PM.

                              Comment

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