Navigating the Maze of Offers of Judgment In Fee-Shifting Cases
New Jersey Law Journal
January 25, 2010
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The offer of judgment rule is designed to promote the early settlement of disputes. It does so by discouraging the rejection of reasonable settlement offers, by shifting litigation costs and attorneys’ fees to parties who refuse reasonable offers to settle.
New Jersey’s version of the offer of judgment Rule 4:58-1 et seq is loosely modeled on the federal offer of judgment rule (F.R.C.P. 68), but differs in several key aspects, most notably that only defendants can make offers of judgment under the federal rule, and the federal rule does not account for percentages of recovery in determining allowance entitlement status.
The state rule provides that a defendant can recover its costs, post-offer litigation expenses, attorneys’ fees and interest if the plaintiff recovers, exclusive of prejudgment interest and attorneys’ fees, 80 percent or less than the defendant’s unaccepted offer of judgment. In the alternative, the state rule states that the plaintiff can recover its costs post-offer litigation expenses, attorneys’ fees and interest, if it recovers, exclusive of prejudgment interest and attorneys’ fees, 120 percent or more of its unaccepted offer.
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