Purpose of Offer of Judgment

[David A. Szwak]

Negron v. Melchiorre, Inc.,
--- A.2d ----, 2006 WL 3456312, N.J.Super.A.D., December 01, 2006

It is well settled that inducement to the early settlement of cases is the fundamental purpose of the Offer of Judgment Rule. Crudup v. Marrero, 57 N.J. 353, 356-57, 273 A.2d 16 (1971); Palmer, supra, 385 N.J.Super. at 425, 897 A.2d 429; McMahon v. New Jersey Mfrs. Ins., 364 N.J.Super. 188, 192, 834 A.2d 1074 (App.Div.2003); Sovereign Bank v. United Nat'l Bank, 359 N.J.Super. 534, 542, 821 A.2d 87 (App.Div.), certif. denied, 177 N.J. 489, 828 A.2d 917 (2003). As noted by Justice Francis thirty-five years ago in Crudup, supra, 57 N.J. at 356, 273 A.2d 16:

[David A. Szwak]

Winfrey v. Costco Wholesale Corp.
--- F.R.D. ----, 2006 WL 3328213
E.D.Va.,2006.
November 14, 2006

Importantly, this holding is consistent with both the purpose of Rule 68 and general contract principles. See Webb, 147 F.3d at 620-22. The purpose of Rule 68 is to encourage settlement and to avoid protracted litigation. Id. This can only be achieved if the offer of judgment makes clear whether fees and costs are included. Otherwise, plaintiff is “left in the position of guessing what a court will later hold the offer means,â€

[David A. Szwak]

Marek v. Chesny,
473 U.S. 1, 105 S.Ct. 3012, 38 Fair Empl.Prac.Cas. (BNA) 124, 37 Empl. Prac. Dec. P 35,396, 87 L.Ed.2d 1, 53 USLW 4903, 1 Fed.R.Serv.3d 1297, U.S.Ill., June 27, 1985 (No. 83-1437.)

Branham, Offer of Judgment and Rule 68: A Response to the Chief Justice, 18 John Marshall L.Rev. 341 (1985); Fiss, Comment, Against Settlements, 93 Yale L.J. 1073 (1984); Shavell, Suit, Settlement, and Trial: A Theoretical Analysis Under Alternative Methods for the Allocation of Legal Costs, 11 J.Legal Studies 55 (1982); Simon, Rule 68 at the Crossroads: The Relationship Between Offer of Judgment and Statutory Attorney's Fees, 53 U.Cin.L.Rev. 889 (1984); Notes, The Impact of Proposed Rule 68 on Civil Rights Litigation, 84 Colum.L.Rev. 719 (1984); Note, Rule 68: A “Newâ€

[David A. Szwak]

Rule 68 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment.

“The plain purpose of Rule 68 is to encourage settlement and avoid litigation.â€

[David A. Szwak]

Pouillon v. Little
326 F.3d 713
C.A.6 (Mich.),2003.
April 16, 2003

Purpose of the rule of civil procedure governing offers of judgment, providing that if the offeree does not accept offer within ten days and the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer, is to encourage early settlements by increasing the risks to plaintiffs of continuing to litigate once the defending party has made a settlement offer. Fed.Rules Civ.Proc.Rule 68, 28 U.S.C.A.