3 PerspectivesSeptember 26, 2008

Rule 68 and Offers of Judgment Part II: Why They Work and How to Use Them

While I wrote previously about how Rule 68 works in Rule 68 and Offers of Judgment Part I:  How They Work and Why You Should Care, most people haven’t considered why it works.  This post outlines some of the reasons why offers of judgment, under Rule 68 or otherwise, can be so effective in getting cases settled.

As outlined in Part I, Rule 68 imposes a penalty on a plaintiff who refuses a reasonable settlement offer and doesn’t beat that offer at trial.  At risk are court costs which, admittedly, don’t create a significant financial exposure.  Big numbers or not, the Rule can still be effective if used under the right circumstances.

Why Does Rule 68 Work?

Rule 68 works because lawyers have to communicate settlement offers to their clients, and a Rule 68 offer of judgment is a settlement offer that creates a downside risk for the plaintiff. More…

Categories: Rule 68,Settlement,Strategy,Theory

3 PerspectivesSeptember 23, 2008

Rule 68 and Offers of Judgment, Part I: How They Work and Why You Should Care

I once had a client tell me:  “I’m in the outsourcing business, not the litigation business.”  He would probably read the title to this post and say something like:  “I’m a client.  Why do I care about rule anything?”  Whether you are a client or a lawyer involved in US litigation, Rule 68 and similar state rules are important to you for two reasons:  they can get cases resolved when nothing else can, and few lawyers use them effectively.

Rule 68:  Formalizing the Settlement Offer Process

While the text of Federal Rule of Civil Procedure 68 is a bit dry, it’s not that difficult in practice.  In short, Rule 68 imposes a penalty on a plaintiff who refuses a reasonable settlement offer.  To avail himself of Rule 68′s benefits, a defendant has to offer the other side a judgment in writing – a settlement offer that, if accepted More…

Categories: Rule 68,Settlement,Tactics