Is it illegal/improper/unallowed to offer a deal to one defendant in a civil case to testify against the other civil defendants if all the defendants will be jointly and severally liable. I am looking at filing a civil suit where one defendant is a minor player, but the award would be jointly and severally. While the minor player was involved in the damages, I am considering offering him a deal where I would agree to an upper limit on damages I would seek from him in exchange for his testimony against the other defendants. Does this violate any rules, could it hurt my case, or is it a stupid thing to do?
1 Answer from Attorneys
Actually it is fairly common and is known as a Mary Carter agreement after a case involving a company called the Mary Carter Paint Company where the plaintiff and one defendant agreed to a "not to exceed" settlement pending recovery from the other defendant. The small potatoes defendant will have to obtain a ruling from the court that the settlement amount you and they agree to is a "good faith" settlement of a reasonable estimate of their share of liability if the other defendant were to sue for indemnity and contribution. So you can't totally lowball the deal to get favorable testimony, but if it's a fair approximation of their proportional liability, it can be a mutually beneficial arrangement.