TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 17, 2013
RE: Rule 68, N.D.R.Civ.P., Offer of Settlement or Confession of Judgment; Tender
Attorney Steven Leibel has requested that the committee consider amendments to Rule 68 that would encourage plaintiffs to make offers of settlement by making it possible for them to receive double costs if the defendant rejects the offer and the plaintiff later obtains a more favorable result at trial. Mr. Leibel argues that the present rule provides no incentive for plaintiffs to make offers of settlement because, if they prevail at trial, they will receive costs regardless of how a defendant may have responded to an offer of settlement. Attorney Dave Peterson has submitted a letter supporting Mr. Leibel's proposal. Copies of both letters are attached.
Mr. Leibel, who has practiced in New Mexico, suggests that we use the New Mexico rule as a model. A copy of the New Mexico rule is attached as are proposed amendments to Rule 68 based on the New Mexico rule.
Mr. Leibel points out in his letter that Minnesota also provides incentives for plaintiffs to make offers of settlement. A copy of the Minnesota rule is attached.
Mr. Leibel has also provided an article, attached, that examines offers of settlement under Rule 68 and the New Mexico approach.