Q: My ex-wife's lawyer showed emails discussing a potential change of school to a judge. Doesn't that violate MRE 408?
My ex and I have had some heated email exchanges in trying to work out differences on school choice and other issues. Her attorney selected specific email and twisted them out of context in a motion. I considered a motion in limine but the judge already saw them. So, I tried to respond, but in a hearing she seemed convinced of the nonsense her attorney spun up. I thought MRE 408 was supposed to prevent entry of negotiations into evidence in order to encourage settlement, and indeed, the fact that this has happened has had an absolute chilling effect on any settlement discussions. I can't say anything now. This seems to be standard practice in family law courts to disregard MRE 408 and use settlement discussions as evidence. Why is this? Is it because they think discussions about parenting are somehow different/not protected/not true settlement negotiations? Can I do a motion in limine after the fact? Isn't this clearly against the spirit and letter of MRE 408?
A:
I applaud your considerable efforts to know and understand the rules of evidence; many people representing themselves can't or don't.
That said, the answer to your question lies in a complete reading of the rule. It's often said that the devil is in the details, and there is many things in the law that start as a generalized statement, but are filled with many exceptions.
I'll call your attention to this: "This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations."
Your email communication would likely be admissible as a statement made by a party opponent. I'm not sure to what extent what you wrote will harm you. Going forward, you should assume that what you write will be presented in court. You'll have a chance to explain it, but your ex's attorney also has a job to do...or "twisting it out of context" as you put it. The big except to this would be actual mediation.
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