Wednesday, December 31, 2008
Professors Thomas Eaton and Harold S. Lewis, Jr. have posted a second report on the utility of offers of judgment under Federal Rule of Civil Procedure 68. In this second report, the Professors discuss some ways in which the rule could be improved.
In very broad terms, we discuss (1) having a separately numbered subdivision of the Rule for cases arising under federal fee-shifting statutes; (2) modifying the terminology of Rule 68 to describe more explicitly the mechanics and sanctions of the Rule; (3) allowing plaintiffs, not just defendants, to initiate offers under a "two-way" rule; (4) devising a set of incentives and sanctions calculated to promote the timely and fair resolution of disputes without unduly threatening either party; and (5) incorporating time frames for making and responding to offers.
You can download the report here.