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Implications of a settlement with one of two (or more) defendants.

In the chess match that can take place in the course of litigating personal injury cases, one topic has especially fascinated me. It involves the situation where you sue two defendants but settle prior to the trial with one of them. The Supreme Judicial Court has clarified an ambiguity which carried into the 1990s. That clarification, in the case of Morea v. Cosco, Inc., 422 Mass. 601 (1996), prohibits the fact of a settlement to come into evidence in a trial against the remaining defendant. To be sure, there are exceptions where this exclusion will not apply. For the most part, however, the rule establishes that the settlement is not admissible. The Supreme Judicial Court made this decision so that settlements can be encouraged with one party. Also, the adjustment for the settlement will be done by the judge as there has to be an offset for the amount that was paid to the plaintiff by the settling tortfeasor. The Massachusetts’s Guide to Evidence, Rule 408, codifies the rule of Morea v. Cosco.

All of this is heartwarming news to plaintiffs. It affords flexibility for there may be times when a resolution against one defendant is preferred. In other circumstances, it may be that the injured party may prefer to have both defendants in the trial of the personal injury action. However, it is always nice to have the choice and your lawyer can advise you, the injured party, which is the preferred strategy. Happily, if it turns out that the better approach is to settle against Defendant 1 while leaving the case open against Defendant 2 – probably the more common approach – the evidentiary implications are known in advance.

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