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95 percent of the fault to the State because the jury would have known that
its verdict would not bankrupt these
two innocent defendants. Likewise, the
panel majority in Collings observed
that “[w]hile the potential for tailored
testimony certainly exists in these circumstances, City First does not show
that any specific statement Mullen
made was false or misleading.” 21 But
as Judge Schindler noted in her dissent, “it is difficult, if not impossible, to
determine whether Mullen’s testimony
would have been different absent the
secret settlement.” 22
Lastly, Barton and Collings also show
that a jury cannot properly evaluate evidence and the credibility of witnesses
unless it knows the true relationship
of the parties. In Barton, for example,
the existence of an agreement that
took the Linvog parents “off the hook”
for Ms. Linvog’s negligence may have
made her more likely to cooperate with
the plaintiff’s theory of liability against
the State. But because the agreement
was kept secret, the jury never found
out about this additional incentive for
her testimony. Similarly, the jury in
Collings would logically find Mr. Mullen’s testimony especially credible because he seemingly testified against
his financial interest even though, in
reality, his testimony was consistent
with his financial interest because he
had been told that he could avoid potential financial ruin if and only if his
deposition testimony “was acceptable”
to plaintiffs. Judge Schindler recognized this point in her dissent as well,
noting that the undisclosed settlement
agreement “distorted the true position
of the parties” and “resulted in misleading City First and the jury.” 23
A Proposed Solution
Fortunately, the Washington Supreme
Court in Barton took the necessary first
step in addressing these issues. The
court there squarely held that the plain-
tiff’s failure to disclose a settlement
document “violated RCW 4. 22.060( 1)
and CR 26(e)( 2).” 24 But although the
court mandated disclosure, it did not
identify the circumstances in which a
new trial is required, it did not decide
whether the same disclosure obligation
exists in cases that are not governed by
the Washington Tort Reform Act and
where no discovery request seeks dis-
closure, and it did not decide whether
trial courts should advise the jury of
such agreements so that jurors can con-
sider the true relationship between the
parties in evaluating evidence and the
credibility of witnesses.
So what can be done at this point?
First, as Judge Schindler advocated in
Collings, “the Supreme Court should
adopt a rule requiring the timely dis-
closure of an agreement between a
plaintiff and a codefendant to enter
into a covenant not to sue and re-
lease.” 25 Although the Supreme Court
did not have the opportunity to do so
in Collings, it can do so through an
appropriate amendment to the civil
rules. 26 That rule should require par-
ties to a settlement agreement be-
tween some, but less than all, parties
to immediately disclose the agreement
