 SHEPARD, J., concurs in the result. BAKES, Justice, dissenting: I agree with the result reached by the majority in Part II of its opinion regarding the standard to apply to motions for new trial based on excessive or inadequate damages. However, that issue is relatively minor insofar as this appeal as a whole is concerned. The central issue on appeal, which the majority misses, is whether Sierra Pacific has been denied its fundamental due process rights, including: (1) the right to a fair trial before an adequately informed jury (which implicates the right to effective cross examination); and (2) the right to a meaningful opportunity to participate in and be heard on motions before the court. Instead the majority focuses on the result obtained in the trial below without carefully considering the means by which that result was obtained. I believe the means utilized were so infirm, they substantially infected the trustworthiness of the result obtained. Thus, because of the majority’s failure to properly focus on the essential issue of this appeal, this Court may unwittingly be establishing law which will undermine our system of civil justice to the detriment of future plaintiffs and defendants alike. I In a classic case of not being able to see the forest for the trees, the majority’s view of Sierra Pacific’s arguments on appeal is obscured by its preoccupation with the single issue of whether the settlement agreement constitutes a so-called “Mary Carter” agreement. The majority fails to address the essence of appellant’s argument, which is that it was denied a fair trial before an adequately informed jury. That such a trial was not had in the present case is clearly disclosed by the record on appeal. In establishing their case, plaintiffs relied entirely on the testimony of witnesses obtained by some of the defendants with which they settled, particularly those affiliated with defendants deHavilland and Western Aircraft Maintenance. As stated *616by counsel for plaintiffs in closing argument: “Let me first point out something rather unique about this case, though. If you look back ... we have proved our case on liability out of the mouths of the defendants’ own witnesses So our case was .. expert witnesses in the employ of defendants. Not one hired gun testified on our behalf. We did not go out and hire high-powered, fancy experts to come in, pay them large amounts of money to testify on our behalf. We proved the case through the mouths of the defendants’ own witnesses.” Thus, Sierra Pacific’s defense rested entirely on its ability to undermine the testimony of these witnesses who were supposedly the “defendants’ own.” It cannot be seriously questioned that the most effective means to undermine such testimony is to cast doubt on its credibility. One way to attack credibility is to show bias. This is precisely what Sierra Pacific attempted to do when it sought permission at the start of trial to disclose a settlement agreement to the jury, in order to establish that these so-called “defendants’ own witnesses” had, as a result of the realignment resulting from the settlement agreement, become plaintiffs’ witnesses. Sierra Pacific correctly argued that its purpose in seeking disclosure was to inform the jury of the true alignment of the parties so that the jury might fully judge the credibility of the witnesses who would testify. However, at a hearing before the trial court, from which appellant Sierra Pacific was excluded, the trial court heard the plaintiffs’ counsel’s oral description of what the settlement agreement contained. Emerging from that briefing by plaintiffs’ counsel, the trial court advised the defendant-appellant Sierra Pacific that it would not be allowed to put on any evidence of the settlement agreement, or to cross examine plaintiffs’ witnesses about it in any attempt to show bias or attack their credibility. Sierra Pacific’s motive in seeking disclosure of the agreement is entirely consistent with our rules of evidence. Rule 408 of the Idaho Rules of Evidence (I.R.E.) provides as follows: “Rule 408. Compromise and offers to compromise. — Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” (Emphasis added.) Although the adoption of Rule 408 was not effective until July 1, 1985, after the trial in this case, it had previously been approved by this Court. In Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980), we expressly adopted the position of Rule 408. In Hatfield we held that statements made in the course of settlement negotiations were not admissible to prove liability or the invalidity of a claim or its amount, as Rule 408 provides. We relied specifically on Federal Rule of Evidence 408, quoting it with approval in its entirety and expressly adopting its position. Hatfield v. Max Rouse & Sons Northwest, 100 Idaho at 846, 606 P.2d at 950. Federal Rule of Evidence (F.R.E.) 408 is identical to I.R.E. 408, and the federal courts have uniformly interpreted the rule as permitting the disclosure of settlement agreements for purposes other than to prove liability or the invalidity of a claim or its amount. See Branch v. Fidelity & Casualty Co. of New York, 783 F.2d 1289, 1294 (5th Cir.1986); McInnis v. A.M.F., Inc., 765 F.2d 240, 248 (1st Cir.1985); *617Brocklesby v. United States, 767 F.2d 1288 (9th Cir.1985); Parker v. O’Rion Industries, Inc., 769 F.2d 647 (10th Cir.1985); Belton v. Fibreboard Corp., 724 F.2d 500, 505 (5th Cir.1984); Reichenbach v. Smith, 528 F.2d 1072 (5th Cir.1976). In Brocklesby v. United States, supra, the Ninth Circuit, in a case involving the suit of survivors of an airplane crash against the government and the publisher of an allegedly defective instrument approach chart, held that an indemnity or settlement agreement between the defendants was admissible in evidence. Prior to trial the defendants had entered into a “stipulation of compromise” settlement in which they sought to resolve the claims between them. Over defendant’s objection, the agreement between the government and the publisher was entered into evidence by plaintiffs. Plaintiffs’ purposes in having the settlement agreement admitted were twofold. “First, the plaintiffs argued that the indemnity agreement was admissible to show the relationship of the parties. The plaintiffs contended that the indemnity agreement showed that Jeppesen and the government were not adverse. Second, the plaintiffs argued that the indemnity agreement was admissible to attack the credibility of the witnesses for Jeppesen and the government.” 767 F.2d at 1292-93. On appeal, the Ninth Circuit held that the district court was correct in admitting the agreement into evidence since the trial court found that the purposes for admitting the evidence were distinct from proving liability or invalidity of a claim or its amount. The Ninth Circuit also specifically found that admitting the indemnity agreement to show that parties to the suit were not in fact adverse was proper. “The test, however, is not whether the relationship of the parties was an operative fact in the case, but whether it was ‘relevant’ within the meaning of Rule 401. Evidence relating to the relationship of the parties is relevant because it tends to make their respective positions less credible.” Id., n. 2 (emphasis added). Thus, in a case very similar to the present case, the federal courts have held that settlement agreements are admissible for the purpose of either attacking the credibility of witnesses or for showing a non-adverse relationship between the parties to a suit. In two cases out of the Fifth Circuit, that court has held that admission of a settlement agreement into evidence does not violate Rule 408 when the purpose of admitting such evidence was to “prevent confusion of the jury.” Belton v. Fibreboard Corp., 724 F.2d 500, 505 (5th Cir.1984); Reichenbach v. Smith, 528 F.2d 1072 (5th Cir.1976). Additionally, in Reichenbach, the Fifth Circuit held that in determining “whether to permit or limit cross examination of a party ... concerning a settlement agreement with a co-defendant, the trial court must balance the policy of encouraging settlements with the need for evaluating the credibility of witnesses The importance of informing the jurors fully so that they can carefully judge the credibility of each witness in making their fact determination may in some situations outweigh the desire to encourage settlements.” 528 F.2d at 1075 (emphasis added). Thus given the uniform interpretation of Federal Rule of Evidence 408 which is identical to the Idaho rule, it is clear that admission of the settlement agreement in the instant case for purposes of showing non-adverseness of the parties or for showing witness bias was not only proper, but necessary. Having requested disclosure of the agreement for the purpose of showing non-adverseness of the parties, so that the jury could adequately judge the credibility of such witnesses, the burden was on the parties to the agreement to establish some other grounds for non-disclosure. The burden was not on Sierra Pacific, as intimated in the majority opinion, ante at 719, to show that exclusion of the evidence would prejudice its case. Such an assertion by the majority evinces a fundamental misunderstanding of the Rules of Evidence. Having offered relevant evidence for a per*618missible purpose, the burden is on its opponent (not on the proponent) to show that prejudice will result from its admission. Failure to make such a showing results in admission of the evidence. The record on appeal is completely devoid of any suggested basis for withholding knowledge of the agreement from the jury.1 Neither the parties to the agreement nor the trial judge were forthcoming with any reasons why the agreement should not be disclosed to the jury. Apparently unaware of this Court’s prior approval in Hatfield of the provisions of Rule 408, the trial judge gave the sum of his reasons for withholding the agreement from the jury as follows: “We aren’t up front with jurors, never have been, never will be. The jury only knows about half what goes on in a trial. You are talking about a Mary Carter Agreement and I don’t see any Mary Carter Agreement here. So your motion to disclose to the jury is in all respects denied.” The trial judge appears to have based his decision not to disclose on his conclusion that the agreement was not a “Mary Carter” agreement. But Rule 408 does not require that a settlement agreement be a “Mary Carter” agreement before it may be disclosed to show non-adverseness of parties. Whether or not an agreement is a “Mary Carter” agreement is simply irrelevant to any analysis under Rule 408. The majority’s attempts to impose a necessity requirement to analysis under I.R.E. 408 are likewise without foundation in the rule. I.R.E. 408 does not predicate the admission of settlement agreements otherwise relevant and admissible upon an additional showing by the proponent of the evidence that he “needs” the agreement to show bias. There is no “best evidence” rule, as asserted by the majority, ante at 719. Whether or not a party “needs” the settlement agreement to show bias is simply irrelevant to any analysis under Rule 408. In short, having sought disclosure of the settlement agreement based upon permissible purpose, the burden was upon plaintiffs to object, and failing such objection, or a sua sponte determination by the trial court that the settlement agreement could not be disclosed based upon other reasons (i,e., Rule 403), it is clear that the trial court’s denial of Sierra Pacific’s motion for disclosure was an abuse of discretion; it constituted clear error. Failing in its analysis under Rule 408, the majority unsuccessfully attempts to argue that the trial court’s clear error is nonetheless harmless. The attempt fails, and once again it is because of a fundamental misunderstanding (misinterpretation) of 1.R.C.P. 61. The harmless error rule is contained in its entirety in I.R.C.P. The language is clear, unambiguous, and of no need of any additional explanation. Under Rule 61, an error at trial is deemed harmless only if such error “does not affect the substantial rights of the parties.” I.R. C.P. 61 (emphasis added). There simply is no language in the rule which, by any fair interpretation, requires the additional finding that “a different result would have been probable” without the alleged error. The majority’s attempt to place such a gloss on the rule is without support in Idaho case law.2 The sole Idaho case relied *619on by the majority for its proposition is Rowett v. Kelly Canyon Ski Hill, Inc., 102 Idaho 708, 711, 639 P.2d 6, 9 (1981). However, Rowett places no such gloss on I.R. C.P. 61. That portion of Rowett dealing with I.R.C.P. 61 clearly states that “error would be harmless because it ‘does not affect substantial rights of the parties/” not because a different result would be probable. Id. The language of Rowett concerning the requirement that a “different result would have been probable” dealt solely with the issue of appellant’s motion for new trial based on allegedly newly discovered evidence under I.R.C.P. 59(a)(4).3 Rowett did not impose the requirements of I.R.C.P. 59(a)(4) on the harmless error rule of I.R.C.P. 61. The majority’s interpretation of Rowett in this regard strains credulity. Whether or not a different result would probably be had on retrial is irrelevant to analysis under I.R.C.P. 61. Such a finding would be entirely speculative. I for one lay no claim to clairvoyance. Rather, under I.R.C.P. 61, if “substantial rights of the parties” have been affected it is presumed that a fair trial was not had and a different result may well ensue on retrial, but whether such will be the case is irrelevant to analysis under the harmless error rule. Given a proper understanding of I.R.C.P. 61, it is inescapable that the error in the present case is not harmless. Again, by the admission of counsel for plaintiffs in his closing argument to the jury, plaintiffs’ case depended entirely on the weight given by the jury to the testimony of expert witnesses of defendants deHavilland and Western Aircraft Maintenance. “So our case was ... expert witnesses in the employ of defendants We proved the case through the mouths of the defendant’s own witnesses.” The heart of the plaintiffs’ case was based on the credibility of those witnesses of the supposedly adverse defendants. To now argue, as does the majority, that denial of Sierra Pacific's sole means for attacking the credibility of those witnesses was harmless error borders on the incredible. The district court’s ruling barring disclosure of the settlement agreement completely denied Sierra Pacific the sole means of proving witness bias. The majority argues that this is not so. The majority concludes that “it is clear that Sierra Pacific did not need to introduce the contents of the agreement in order to show witness bias or prejudice.” Ante at 719. This conclusion is based on two premises: (1) prior deposition testimony of witnesses affiliated with the settling defendants is consistent with their trial testimony; and (2) such deposition testimony was given “long before the ... agreement was entered into.” Ante at 719. Both premises are without support in the record on appeal. First, there is no basis in the record on appeal upon which the majority may even assert that depositions of the expert witnesses for deHavilland and Western Aircraft Maintenance even exist. The alleged depositions are not in the record. Thus, without establishing the existence of such depositions, I fail to see how the majority may assert that Sierra Pacific “could have used them to impeach any witness it felt was compromising his or her testimony.” 4 *620Second, even if such depositions do exist, and even if they may have been taken before the settlement was actually agreed to, we do not know whether they were taken prior to the time when the agreement was being negotiated by the parties. If such depositions do in fact exist, and were taken during the time when the parties were contemplating entering into the settlement, it may well be that the deposition testimony was affected by such a contemplated agreement, i.e., deposition testimony may have been given with the view that a settlement agreement ultimately would be entered into.5 Thus, without support for either premise, the majority’s conclusion must fall. Because the appellant Sierra Pacific was denied the means to obtain the information necessary to make a showing regarding bias, the case must be remanded for a new trial. The remaining reasons given by the majority as to why the trial court’s error is harmless are likewise makeweight. They fail as a whole to explain away the fact that Sierra Pacific’s due process right to a fair trial, including the right of adequate cross examination of adverse witnesses, has been denied. Sierra Pacific was barred from the proceedings in which the agreement was explained to the trial judge, and then Sierra was barred from disclosing the agreement to and discussing it in front of the jury. Sierra was also denied the right to show bias in plaintiffs’ witnesses through cross-examination regarding the settlement. Indeed, the reasons allegedly supporting a finding of harmless error are simply a rehashing of arguments relating to admissibility of “Mary Carter” agreements. See Comment, “The Mary Carter Agreement — Solving the Problems of Collusive Settlements in Joint Tort Actions,” 47 S.Cal.L.Rev. 1393, 1400-01 (1974) (acts indicative of “Mary Carter” agreements include: agreeing defendant’s abandonment of earlier pleaded defenses; agreeing defendant’s admission of liability during trial; agreeing plaintiff’s leading ostensibly, though in fact, non-adverse witnesses in order to effectively control their testimony). However, the majority’s “Mary Carter” reasoning is of no avail; it is beside the point. The whole “Mary Carter” issue of admissibility is rendered moot by I.R.E. 408.6 Substantial rights of Sierra Pacific have not only been “affected,” I.R.C.P. 61, they have been completely denied by the trial court’s ruling regarding disclosure of the agreement to the jury. The district court’s error cannot be said to be harmless. It has undermined the very substance of our civil justice procedures which ensure to both plaintiff and defendant alike a fair trial before an adequately informed jury. The function of a jury trial was properly characterized by plaintiffs’ counsel during closing argument, paraphrasing earlier statements by the trial judge. “Now, his Honor said to you a few moments ago ... that nobody will triumph *621here unless the truth has been ascertained. And that is true. I wholeheartedly agree with that because that is what our system is all about. And a trial has been defined, and I think accurately, as an intensive search for truth. And that is what we have been involved in here.” What counsel failed to explain to the jury was that, in this “intensive search for truth,” a significant untruth had been forged by the plaintiffs, in concert with the defendants deHavilland and Western Aircraft Maintenance. In short, from the moment the jury sat as trier of fact, a misrepresentation was perpetrated on it and perpetuated throughout the course of trial. The “intensive search for truth” in the present case has been frustrated. Sierra Pacific’s ability to engage in meaningful cross-examination, the “greatest legal engine ever invented for the discovery of truth,” California v. Green, 399 U.S. 149, 159, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970), was completely impaired by the trial court’s refusal to permit plaintiffs’ witnesses to be cross examined for bias resulting from the settlement agreement. Nevertheless, the majority is now heard to argue that such frustration of the “intensive search for truth” is “consistent with substantial justice,” I.R.C.P. 61, and is therefore harmless, non-reversible error. I cannot, in good faith, join in such an argument.7 II Not only was Sierra Pacific denied due process during trial (no cross examination to show bias), it was also denied procedural due process concerning its motion to the court for disclosure of the contents of the settlement agreement. In Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983), the unanimous Court held: “The right to procedural due process guaranteed under both the Idaho and United States Constitutions requires that a person involved in a judicial process be given meaningful notice and a meaningful opportunity to be heard.” 105 Idaho at 115, 666 P.2d at 642. Under the facts of the present case, I believe Sierra Pacific has been denied its procedural due process rights because it was not given “meaningful opportunity to be heard” on the question of whether or not the settlement agreement between plaintiffs and the settling defendants required disclosure to the jury to show bias or non-adverseness of the parties. The in camera hearing from which the non-settling defendants were barred constituted, in effect, an ex parte communication initiated by plaintiffs’ counsel. Following the in camera hearing, the court indicated to the non-settling defendant Sierra Pacific that in his opinion the agreement did not constitute a “Mary Carter” agreement. However, the district court was not forthcoming with his reasons for so holding or with any findings of fact upon which his conclusion was based. The court did eventually tell the non-settling defendants that as he understood the agreement it was simply that “if the case develops as indicated in the opening statements, then the plaintiffs will at some time move to dismiss the defendants deHavilland and Western Air.” However, there was much more to the agreement which was not disclosed to the non-settling defendants. Furthermore, since the appellant Sierra Pacific was not allowed to inquire into the settlement, it is not even certain that the entire agreement was disclosed to the trial judge. *622Plaintiffs’ counsel, at the in camera hearing, which was not transcribed until long after the trial has concluded, orally described their understanding that it was “anticipat[ed] that [the settling defendants] would have no reason to blast out of the water our damage witnesses,” and that the defendants would “help put on our case ... by, one, perhaps furnishing us with various exhibits” which they would otherwise have a great deal of difficulty obtaining. Given this lack of complete information concerning the agreement, I fail to see how it can possibly be said that the non-settling defendants were given any meaningful opportunity to be heard on the question of whether or not the agreement constituted a “Mary Carter” agreement. The non-settling defendants were not permitted to participate in the in camera hearing and were kept completely in the dark regarding the agreement. As aptly stated by counsel for Sierra Pacific, “If that is the sum and substance of their agreement, why is it so secretive, why are they afraid to bring it out in the open. That leads me to conclude there must be more to it.” I believe the procedure followed in this case denied the appellant due process of law, in violation of both Art. 1, § 18, of the Idaho Constitution and the fourteenth amendment of the United States Constitution. Ill Not only has the majority sanctioned procedures undermining notions of fair trial and substantial justice, it has also, perhaps unwittingly, sanctioned procedures which will facilitate if not encourage violations of the Canons of Ethics for practitioner and jurist alike. Our canons of professional and judicial ethics complement the constitutional requirement that parties to an action be accorded an open and fair trial, that they be accorded fundamental due process. The Professional Code of Responsibility, Canon 7, Disciplinary Rule DR7-110B, and the Code of Judicial Conduct, Canon 3A(4), each ensure that fundamental due process rights of parties to litigation are not violated. Both the Code of Judicial Conduct and the Code of Professional Responsibility prohibit ex parte communications with the court. The Code of Judicial Conduct, Canon 3A(4) specifically provides, “A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to the law, and, except as administrative responsibilities dictate, should not initiate ex parte communications concerning a pending or impending proceeding. A judge shall not solicit the advice of any person, except from court or judicial personnel regarding a proceeding before him unless he gives notice to the parties and affords them an opportunity to respond.” (Emphasis added.) Although the trial judge in the present case did not initiate the ex parte communication with the attorneys regarding the settlement agreement, I believe the intent of the canon is to preclude all such ex parte contacts, particularly in pending cases where the issues are joined and all parties are represented by counsel. I additionally question the prudence of such actions in view of fact that full disclosure of the contents of the hearing held in judge’s chambers was not given to the non-settling defendants until an appeal was taken and the transcript prepared. The majority’s sanctioning of the procedures utilized in this case will inevitably invite violations of the Canon and prove “antithetical to the adversial process.” Disciplinary Rule 7-110B likewise prohibits certain ex parte communications with court officials. “DR 7-110 Contact with Officials. “B. In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official *623before whom the proceeding is pending, except: “1. In the course of official proceedings in the cause. “2. In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer. “3. Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer. “4. As otherwise authorized by law.” Here, the ex parte communication was oral. And although it appears that the notice required by DR 7-110B(3) was given to the non-settling defendants that the plaintiffs were seeking to hold the in camera hearing before the trial judge, nevertheless, when the in camera hearing was held, counsel for the non-settling defendants were barred from that hearing. The information given the court was intentionally withheld from opposing counsel until months later when the appeal transcript was prepared. While perhaps the letter of the rule was not violated, I believe the spirit of the disciplinary rule is violated by the type of procedure that was followed in this case. Counsel for the non-settling defendants were not permitted an opportunity to participate in or to be heard concerning the matters discussed in the hearing. They were deliberately excluded from the in camera hearing. The purpose of DR7110B is to prevent the effect or appearance of granting undue advantage to one party. See ABA Code of Professional Responsibility, Ethical Consideration 7-35 (1970). Furthermore, the concept of open and public judicial proceedings encouraged by the Code of Judicial Conduct, Canon 3A(4), is of fundamental importance and must be scrupulously followed. I believe that the Canons were not scrupulously followed in the present case. The errors described above can never be described as harmless. The true gravity of the errors can only be ascertained after the appellant is given the right to examine the witnesses to determine what their bias may have been, based on a full disclosure of the settlement agreement. I would reverse and remand for a new trial. . The only basis for keeping such information from the jury would be that it is irrelevant to any issue in the case (IRE 401, 402), which is hardly the case here, see Brocklesby v. United States, 767 F.2d 1288 (9th Cir.1985) discussed supra in the text; or, that even though relevant, such information is unduly prejudicial or would otherwise confuse or mislead the jury (IRE 403). Clearly, IRE 403 is inapplicable. Indeed, without disclosure the jury will be misled as to the true alignment of the parties and will thereby be deprived of a meaningful basis forjudging witness credibility. . Initially, the majority relies upon a single Utah case for its proposition that the harmless error rule requires a finding that a different result would be had upon retrial. That Utah case, Bambrough v. Bethers, 552 P.2d 1286 (Utah 1976), is inapposite because in that case the court was construing a particular and unique Utah rule of evidence, without counterpart in the Idaho Rules of Evidence. The decision in the Utah case was not based upon Utah’s Rule of Civil Procedure No. 61 which is identical to Idaho’s Rule 61, the harmless error rule. . In footnote 13, the majority also attempts to extend the requirements of I.R.C.P. 59(a)(4) (i.e., that a different result must be probable upon retrial before a motion for new trial is granted) to motions for new trial in general. “[Wjise appellate review should only require the ordering of a new trial where there is a probability that a different result would occur upon the completion of a new trial. Such an extension is unwarranted and without support in either the express, unambiguous language of Rule 59(a) or case law dealing with Rule 59(a). Since the enactment of the current version of Rule 59(a), this Court has never espoused the "different result” on retrial requirement outside of Rule 59(a)(4), and it would be unwise to engage in such speculative factfinding outside the ambit of Rule 59(a)(4). . Even if there were depositions before us, inconsistent testimony does not equate with a finding of bias. Showing prior inconsistent testimony is but one way to attack credibility. Prior inconsistent statements and witness bias are two entirely distinct methods of attacking credibility. The majority's argument does not even address the issue of bias as a basis of cross examination. . The majority asserts in footnote 9, ante at 719, that the date of the settlement agreement is known. However, the majority’s reference to statements by counsel for Western Aircraft Maintenance are inaccurate. In the first place, the statements were made by counsel for plaintiff Soria at a hearing where appellant’s counsel was excluded. And, in the second place, they are ambiguous at best, indicating that part of the settlement agreement was entered into during the voir dire portion of trial. The only sure information given by the record on appeal is the date when counsel for Sierra Pacific discovered the existence of the settlement agreement, which was just prior to the ex parte hearing. . The majority's argument that "Sierra Pacific cannot point to one instance where witnesses representing deHavilland or Western Aircraft Maintenance [the settling defendants] testified against their own interests ... [or] concede liability,” is meaningless. Of course they didn’t concede liability or testify against their interests. The terms of the oral settlement agreement, as described by plaintiffs’ counsel to the court in camera, specifically provided that if the settling defendants did in any way concede liability the agreement was off! ”[A]ssuming deHavilland and Western Aircraft [do] not get up and admit liability or get caught in a position where their witnesses were impeached, that they had lied or whatever, in other words if the contingencies of trial worked out, ... we [plaintiffs] were going to ... dismiss them from the case ... provided they perform as they thought they could and nothing came from the sky.” . Perhaps the most telling sign of an inadequate "search for truth” in this case, is found in the majority opinion itself. The majority repeatedly makes use of the phrase "nothing in the record ...” or "the record fails to show----" The obvious reason why the record is so devoid of information, as expressly recognized by the majority, is that Sierra Pacific was precluded from participating in that part of the proceedings and from developing adequate information in the record; it was denied the right to use the most effective means to obtain such information, its right to call witnesses or cross examine. Having recognized the inadequacy of the record, the majority ought to remand for a new trial so an adequate record may be developed rather than use such inadequacy as carte blanche to justify its own finding of "harmless error.” 
Bistline, Donaldson, Huntley, Shepard
Soria v. Sierra Pacific Airlines, Inc.
Cherie SORIA, Plaintiff/Respondent/Cross-Appellant, v. SIERRA PACIFIC AIRLINES, INC., a Corporation, Defendant/Appellant/Cross-Respondent, and deHavilland of Canada, a Corporation; And Western Aircraft Maintenance, a Division of Morrison-Knudsen Co., a Corporation, Defendants/Respondents, and Transwestern Airlines, Inc., a Corporation; Doe I; Doe II; Doe III and Corporate Does I Through X, Defendants; Bernie RYAN, Plaintiff/Respondent/Cross-Appellant, v. SIERRA PACIFIC AIRLINES, INC., a Corporation, Defendant/Appellant/Cross-Respondent, and deHavilland of Canada, a Corporation; And Western Aircraft Maintenance, a Division of Morrison-Knudsen Co., a Corporation, Defendants/Respondents, and Transwestern Airlines, Inc., a Corporation; Doe I; Doe II; Doe III and Corporate Does I Through X, Defendants
<citation id="b634-13">
    726 P.2d 706
   </citation><parties id="ABX1">
    Cherie SORIA, Plaintiff/Respondent/Cross-Appellant, v. SIERRA PACIFIC AIRLINES, INC., a corporation, Defendant/Appellant/Cross-Respondent, and deHavilland of Canada, a corporation; and Western Aircraft Maintenance, a division of Morrison-Knudsen Co., a corporation, Defendants/Respondents, and Transwestern Airlines, Inc., a corporation; Doe I; Doe II; Doe III and Corporate Does I Through X, Defendants. Bernie RYAN, Plaintiff/Respondent/Cross-Appellant, v. SIERRA PACIFIC AIRLINES, INC., a corporation, Defendant/Appellant/Cross-Respondent, and deHavilland of Canada, a corporation; and Western Aircraft Maintenance, a division of Morrison-Knudsen Co., a corporation, Defendants/Respondents, and Transwestern Airlines, Inc., a corporation; Doe I; Doe II; Doe III and Corporate Does I Through X, Defendants.
   </parties><docketnumber id="ACB">
    Nos. 15817, 15818.
   </docketnumber><br><court id="b634-27">
    Supreme Court of Idaho.
   </court><br><decisiondate id="b634-28">
    Aug. 26, 1986.
   </decisiondate><br><otherdate id="b634-29">
    Rehearing Denied Oct. 28, 1986.
   </otherdate><br><attorneys id="b636-22">
<span citation-index="1" class="star-pagination" label="596"> 
     *596
     </span>
    Stephen W. Boiler, Hailey, Lloyd J. Webb (argued), of Webb, Burton, Carlson &amp; Pedersen, Twin Falls, and Philip L. Johnson (argued), of Engstrom, Lipscomb &amp; Lack, Los Angeles, Cal. for appellant/cross-respondent Sierra Pacific Airlines, Inc.
   </attorneys><br><attorneys id="b636-23">
    Mark S. Gesten and Kathleen Perkins Brooks (argued), of Eberle, Berlin, Kading, Tumbow &amp; Gillespie, Chartered, Boise, for
    <span citation-index="1" class="star-pagination" label="597"> 
     *597
     </span>
    respondent The deHavilland Aircraft of Canada, Ltd.
   </attorneys><br><attorneys id="b637-4">
    James J. McCarthy, Los Angeles, Cal. (argued), and Rand Peebles, Ketchum, for respondent/cross-appellant Cherie Soria.
   </attorneys><br><attorneys id="b637-5">
    E. Lee Schlender (argued),' and Michael F. Donovan, Ketchum, for respondent/cross-appellant Bemie Ryan.
   </attorneys><br><attorneys id="b637-6">
    Michael W. Moore, of Imhoff &amp; Lynch, Boise, for respondent Western Aircraft Maintenance.
   </attorneys>
Idaho Supreme Court
Idaho Supreme Court