Rule 68 has a reputation of being “among the most enigmatic” and “underutilized” of the Federal Rules of Civil Procedure. An attorney’s failure to understand and effectively use Rule.
The Federal and most state rules of civil procedure contain an
offer of judgment provision. It allows a defendant to issue an “offer of judgment” to a plaintiff to settle the case. It is designed to
create a pause with the plaintiff to assess her case and decide whether she wants to proceed forward with the litigation or resolve it. The purpose of the rule is to encourage prompt and early resolution of disputes. A defendant utilizing the rule has an incentive to make a realistic offer that is
inclusive of accrued interest and other litigation expenses (such as attorney’s fees where there is a fee shifting provision). If an offer of judgment is not accepted, it potentially creates a cost shifting provision in favor of the defendant
Sunday, April 4, 2021
The Federal and most state rules of civil procedure contain an
offer of judgment provision. It allows a defendant to issue an “offer of judgment” to a plaintiff to settle the case. It is designed to
create a pause with the plaintiff to assess her case and decide whether she wants to proceed forward with the litigation or resolve it. The purpose of the rule is to encourage prompt and early resolution of disputes. A defendant utilizing the rule has an incentive to make a realistic offer that is
inclusive of accrued interest and other litigation expenses (such as attorney’s fees where there is a fee shifting provision). If an offer of judgment is not accepted, it potentially creates a cost shifting provision in favor of the defendant