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She Negotiates

She Negotiates

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Practice Tip: Strategic Use of Offers for Judgment

(right:  Belushi as Brando as Vito Corleone)

Even if you don't practice in New Jersey, take a look at Make an Offer Your Adversary Can't Refuse from an August issue of the New Jersey Law Journal written by Gibbons Law Firm attorneys Paul F. Cullum III and Jason R. Tuvel

Here in California, we call an "offer for judgment" a "998." 

"Have you served a 998?" is a question I often ask the parties during mediation when we appear to be reaching impasse.  The usual answer is "we haven't done enough discovery" or "we've been waiting for the mediation [to fail] before serving it."  

As Cullum and Tuvel correctly note, it's a mistake not to use this hammer as early in the litigation as possible.  I'll add to their excellent advice that it's very good to serve the offer prior to mediation -- not after

It's ammunition I can add to the "parade of horribles" for the other side.

Apparently, there's a new decision in New Jersey called Palmer that clarifies the previously open question whether you could serve multiple offers of judgment during the course of the litigation.  I must admit that I don't know the answer to the question here in California (readers?) but provide you with the Practice Tip of the Week from Cullum and Tuvel.

Nice article guys. Thanks for adding to the collective wisdom.  

The Palmer decision provides tremendous guidance to both attorneys and litigants with respect to case management and strategy. For example, if an attorney has not had the opportunity to complete discovery, but has analyzed the case enough to make an informative estimate on damages, an attorney can advise his client to file and serve an offer of judgment as soon as possible to get an early trigger date for fee-shifting purposes under the Rule.

Thereafter, once discovery has concluded or been more thoroughly explored, a subsequent offer(s) can be made that is more likely to invoke a settlement.

In the alternative, a subsequent offer may have only slightly modified a prior offer, and therefore the offeror will stand a good chance of collecting fees on the earlier offer which will cover more of the offeror’s expenses because it has never exinguished in lieu of the Palmer decision.

Good strategy that should be applied for tactical advantage in any jurisdiction that permits it.

And a hearty congratulations to the Gibbons Law Firm for joining the AmLaw 200 for the first time in June of this year!

Comments (1)

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south Jersey tile - November 23, 2013 8:52 PM

Good post. I absolutely love this site. Thanks!

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