2 PerspectivesJuly 18, 2009

Ambiguities in Rule 68: Why Are They Relevant to You?

If you see an ambiguity in a rule, is it your job to fix it? Maybe it is, maybe it isn’t, but one thing’s for sure: until the rule changes, you have to deal with it as it is. Like it or not, uncertainty creates risk as well as opportunities — for you and for the other side. Whether you react to either is up to you.

This isn’t the Rule 68 Blog (despite our introduction to Rule 68 and an entire series on the rule already), but a recent article in the Minnesota Law Review merits a return to one of our favorite topics. Danielle M. Shelton’s recent article, “Rewriting Rule 68: Realizing the Benefits of the Federal Settlement Rule by Injecting Certainty into Offers of Judgment,” suggests how we can fix Rule 68 like our Civil Procedure professor might have wanted — but along the way it thoroughly explores uncertainties created by Rule 68 that litigators ignore at their peril.

Can Rule 68′s Ambiguities Drive Settlements?

Professor Shelton makes a few critical points about the uncertainties created by Rule 68 — and why lawyers for both sides should care: More…

Categories: Rule 68,Settlement,Tactics

2 PerspectivesFebruary 6, 2009

Claims for Attorneys’ Fees: How Rule 68 Can (Sometimes) Help

Most lawyers in federal court believe that Rule 68 isn’t much of a threat, and for the most part they’re right. We discussed why this is true previously, but in that same post we highlighted one noteworthy exception: Rule 68 can cut off plaintiffs’ claims for attorneys’ fees in some cases. Today we’ll discuss when that might be, and how you can make Rule 68 work for you.

Rule 68 and Attorneys’ Fees: The Law

The General Rule. As we discussed more fully in Part I of this series, the text of Federal Rule of Civil Procedure 68 imposes a penalty on a plaintiff who refuses More…

Categories: Negotiation,Rule 68,Strategy

1 PerspectiveDecember 17, 2008

Rule 68 Offers: A Few Sample Forms to Get You Started

A few months ago we first discussed how valuable Rule 68 can be in Rule 68 and Offers of Judgment, Part I:  How they Work and Why You Should Care, and that initial post has evolved into this series on Rule 68. I have recently heard from a few readers who are new to offers of judgment, with several looking for sample Rule 68 Offers to help get them started. This is a quick post to do just that.

A Few Sample Rule 68 Offers of Judgment

Attached are four Rule 68 Offers actually submitted in California, Michigan, More…

Categories: Miscellaneous,Rule 68,Settlement,Tactics

6 PerspectivesSeptember 30, 2008

Rule 68 and Offers of Judgment, Part III: 9 Situations Where They Just Might Work

Following my posts about how Rule 68 works in Part I of this series and why it works in Part II, I had spirited discussions with a few of you about when offers of judgment can be most effectively used.  This post will highlight 9 situations where Rule 68 offers are more likely than most to be successful.  As always, this is a nonexhaustive list based on my own experience; I welcome additional situations you’ve witnessed.

Nine cases and situations where I believe Rule 68 offers are the most likely to be successful include:

(i) Hindsight Avoiders. I have litigated against several trustees, and they know their judgment will someday be second-guessed — with 20/20 hindsight — if they lose at trial.  Trustees and other fiduciary representatives are a bit different than individual plaintiffs who can “bet it all” on a bad case; like it or not, trustees may someday have to answer the question:  “The Rule 68 offer was unconditional; how could you have left it on the table?”  Or:  “How could you not have understood how bad our case was when you had an offer of judgment in front of you?”  Go ahead and use Rule 68 to make it hard for them to walk away.

(ii) The Bird in the Hand. Cases with natural breaks in damages are ripe for Rule 68 offers.  Cases with contractual damage caps and cases where a back More…

Categories: Mediation,Rule 68,Settlement,Strategy,Tactics