Please Help With 'Civil Procedure 68 or Rule 68'

[Mec4040]

What is the name of your state? NY


Info on case: My case is for false arrest. Its been about 1 year, they already made a very very low offer. The stage we are out currently is next to have the 'settlement hearing'. The bad news is that today they submitted paper work for a 'Civil Procedure 68' also called a 'Rule 68'.

I did a bit of online searching and from what I found...I'm really screwed!!! I dont understand how something like this can be allowed. It really does not seem fair. How can this be....if they offer me 20k and instead we goto court and win but only win 15k, they now can sue me for attorney fee's. Or if they offer 20k and I lose, they also can sue me for attorney fee's...how can this be allowed?

Does anyone know if there is a way around this, or a way to stop it....anything or some kind of loop hole, or steps that can be taken to counter their move???


Please if anyone knows or has any idea's please take the time to explain. This is truly very important and would be very thankful for any help.


Thanks in advance,
Jon

 

[Rexlan]

That's the way it works but if you win more than 20K you get atty fees.

Take the $$ and run.

 

[Quaere]

It really does not seem fair. How can this be....if they offer me 20k and instead we go to court and win but only win 15k, they now can sue me for attorney fee's. Or if they offer 20k and I lose, they also can sue me for attorney fee's...how can this be allowed?

You have the wrong idea.

Under the first part of rule 68, they can offer to ALLOW JUDGMENT (they admit they were wrong) and they make a settlement offer.

You are free to turn the offer down. There is no penalty for turning it down. You are entitled to your day in court.

If you lose the trial, you do NOT have to pay their fees.

If there is a DETERMINATION OF LIABILITY by the court or jury, THEN they can make an offer and you will incur some risk if you turn that offer down.

Let’s say you’ve won the trial, they offer $20k and you turn it down. You want the jury to decide your award. The damages portion of the trial proceeds and the jury comes back with a $19k award. Now, since they already tried to pay you off but you made them go through more litigation, you will have to pay any costs incurred by the defendant AFTER they made their $20k offer. Basically, you pay for the cost of presenting the damages portion of the suit, because it would not have been necessary if you had accepted their apparently reasonable offer.

 

[VeronicaLodge]

acutally, I dont think thats the way it works. I think it works more like the original poster stated but I'll let someone else chime in with exact knowledge.

 

[You Are Guilty]

acutally, I dont think thats the way it works. I think it works more like the original poster stated but I'll let someone else chime in with exact knowledge.

Quaere is correct, but could have been clearer in that, by default, "costs" do not include attorneys fees. (However, in certain cases (i.e. in claims filed under fee-shifting statutes), they can). So the "risk" is essentially "court costs" (which is usually addressed in the post-trial Bill of Costs).

 

[Rexlan]

But typically the court cost are relatively minor by comparison.

My impression was that if you took the matter to trial after the offer and did not prevail to a greater amount than the offer that you incurred the fees (as a part of the "cost".

That would seem to make sense otherwise there is little to loose or gain either way.

 

[You Are Guilty]

I've seen bills of cost for over $35k, non-inclusive of atty's fees that were approved (which is usually the clerk's function anyway, not the judge's). Trial costs can add up even with the lawyer's fees - expert witnesses, exhibit preparation, duplication, postage... it's not cheap.

I suppose some Circuits might permit attorneys fees to be included even in the absence of a statutory provision; I just don't know of any.

 

[VeronicaLodge]

Quaere is correct, but could have been clearer in that, by default, "costs" do not include attorneys fees. (However, in certain cases (i.e. in claims filed under fee-shifting statutes), they can). So the "risk" is essentially "court costs" (which is usually addressed in the post-trial Bill of Costs).

thanks, so basically rule 68 only really works or applies if there is a bifurcated trial?

 

[You Are Guilty]

thanks, so basically rule 68 only really works or applies if there is a bifurcated trial?

For the most part, yes. Then again, at least here, I'd say most trials are bifurcated, whether the parties want them to be or not.

 

[Mec4040]

Hello everyone,

First I want to thank everyone for sharing their advice. I have tried doing endless searching online and from what I have found, it seems the rule 68 is really very unfair. I cant see how something like this is allowed, with out being able to stop it or counter it.

I'm not claiming to understand law by any means and that is why I'm here asking for help. From what read in past cases and some articles written on the subject, is that when a rule 68 is submitted, the Plaintiff must pay the def attorney's fees if they win less then the offer. Meaning...if the def offers 100k and the plaintiff turns it down and goes to court to win a judgement of 80k...(which is less then the offer) then the plaintiff has to pay the def att fee's.

What I dont understand, is that this rule puts the def in a better postions no matter which way the trial goes. The def has everything to gain and nothing to lose.

That being said, why wouldnt every def submit a rule 68?
Is there any strategy/tactics that can stop this or atleast lower the risk/cost?
Also, is there some kind of rule or etc that the plaintiff could have submitted before the def had his chance, that would prevent their rule 68? Meaning...the plaintiff submitted/issues a 'rule xyz or etc' first, thus stopping the def from trying to use the rule 68.

I know I might be reaching here, but sometimes you hear about these forgotten laws or legal loop holes. The only thing I found and I dont know if it would work is the following:

While a prevailing civil rights plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust," Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citations omitted), a prevailing defendant should only be awarded a fee when a court finds "`that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.'" DeBauche v. Trani, 191 F.3d 499, 510 (4th Cir. 1999) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)) (applying Christiansburg standard to cases arising under sections 1983 and 1988)). The nearly routine award
of attorney fees to prevailing plaintiffs is intended to facilitate ready access to the courts for civil rights claimants. Hensley, 461 U.S. at 429.


Please if anyone can let me know how the above might work or if there is anything else that you might know of that would help, please let me know.


Thanks again in advance,
Jon

 

[Rexlan]

They probably submitted the Rule 68 Motion to stop your ability to collect attorney fees. It "appears" that they knew you would prevail and as a consequence that you would be entitled to your attorney fees as a cost because of the nature of you case. So, to stop the fee clock, they have made this offer which can shift the cost to you if you do not win an award of more than the offer. In that case you will be responsible for all of their cost, including attorney fees, from the time of the offer until it is over. If you win an award greater than the offer then you’re in good shape.

Also keep in mind that if you decline this offer they may well make another with a higher amount. Sort of like going to Vegas … a gamble. They are not precluded from making better offers maybe 10-15 days prior to trial. But then they may not too.

I don't think you have said if you have had an attorney. If you have not then you will get precisely nothing for your time or being your own attorney. Attorney fees are only available to licensed attorneys (yea I know it is unfair) and that is well settled law.

So in the instant case you have little to gain and allot to lose. Say you win a 19K settlement and as a consequence you incur the defs costs. Those costs may well exceed $40K so that victory may only cost you $22K out of your pocket.

Don't allow you zest for big$$ override your good judgment. Unless you were really damaged (not just really PO’d) by the false arrest you need to think it through. If you don't have an attorney now is the time to get one as you only have a few days left to deal with this.

Maybe some of the more experienced folks see it differently.

 

[Mec4040]

Hello,

Thank you for taking out the time to share some advice. I understand what you are saying about taking the offer, mainly if I didnt really get hurt...however their offer is very...very low.

I do have an att but am alittle unsure about his actions...thats a whole other story. I do appreicate your input. The more I read and learn about this rule 68, I cant understand how something like this can be legal...it really seems unfair. I dont see how both sides are balanced, when the def is able to use such a tactic.


Thanks again and if you or anyone else comes across anything that might be helpful, even a little bit helpful, please post it here ASAP.


Jon

 

[Mec4040]

My main question was about getting around the rule 68 and from what I have found online, you cant.

I have come up with a new question, and that is if there is a way to prevent/stop the def att from making another, higher offer rule 68 settlement offer?

Meaning...after saying no to the def att offer of 25k, by law...they can make another settlement offer, say for 50k...under the rule 68.

Any ideas?


Jon

 

[dcatz]

Aside from an unknown issue of timing in your case, the answer to your question is no. Rexlan explained that and the Rule is clear:
Rule 68. Offer of Judgment
(b) Unaccepted Offer.
An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.

All states of which I am aware have some statutory counterpart. The purpose is to encourage resolution without the need for consuming court resources for a trial. Is it legal arm-twisting? You could call it that. Is it “unfair”? Trial is always a gamble – always – and it depends on how reasonable the offer is and how much you’re willing to gamble. You/your attorney know the case and what has gotten you where you are like nobody online could. It’s expensive to run a courtroom and conduct a trial, and it can be expensive go through final trial preparations. In part, it’s an economic decision – what is the cost to finish preparation and do fees go up for trial etc. – as it is a “fairness” decision.