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Abstract:
We were interested in learning why Rule 68 is not a more prominent feature of civil rights and employment discrimination litigation. Why is it not used more frequently in the very types of cases in which defendants have the greatest economic incentive to make offers and plaintiffs have the most to lose if they refuse them? We harbor no illusion that Rule 68 is a panacea for dispute resolution. But it is one tool for ratcheting up the pressures for an early settlement with a measure of legal compulsion. Our interest in Rule 68 is not driven by the belief that too many cases go to trial. Indeed, it appears that the civil trial has become a notable rarity - by one respected account, more than 98% of federal civil litigation is resolved by means other than trials. Nevertheless, Rule 68 may harbor the potential to speed up the settlement process and thereby produce significant economic savings to the parties, with correlative savings to the courts and the taxpayers who fund them.

Our contribution to the policy discussion is to report the views of experienced practicing attorneys who decide on a daily basis whether to make or accept offers of judgment. We conducted in-person, in-depth interviews with sixty-four experienced litigators who prosecute and defend civil rights and employment discrimination claims. This is the first such nationwide empirical inquiry into the incidence of practitioner use of Rule 68 in the federal fee-authorization cases where, after Marek, one would expect its use to be most common.

Part II describes the methodology we used in constructing this study. Part III discusses the technical aspects of Rule 68 and how they might contribute to use or non-use of offers of judgment. Part IV confirms the anecdotal evidence that Rule 68 plays little role in civil rights or employment discrimination litigation throughout most of the nation's federal courts. However, there are a few districts where Rule 68 has become a more than occasional part of evaluating and processing civil rights, although not employment discrimination, cases. Part IV also summarizes the primary reasons advanced by experienced attorneys for the infrequent use of Rule 68. Part V reports on the reactions of these attorneys to various proposals for reform.

Rule 68, Offer of judgment, Marek

Abstract:
Punitive damages are controversial aspects of tort litigation and have been the subject of numerous theoretical, empirical, and experimental studies. Critics have argued that the uncertainty and unpredictability that punitive damage claims inject into a case may increase the rate and amount of settlements and carry systemic consequences for the general processing of tort claims. This paper represents the first empirical examination of this hypothesis.

With one of the most comprehensive data sets of tort litigation we analyze cases that are likely to have caps on punitive damage awards and cases that are likely to be uncapped. We examine the effect of the decision to seek punitive damages on several major decision points in the tort litigation process in a series of logit regression models. With extensive control variables we find that seeking punitive damages has no statistically significant effect on most phases of the tort litigation process.

Abstract:
Punitive damages are one of the most controversial aspects of tort litigation and have been the subject of various theoretical, empirical, and experimental studies. One criticism of punitive damages refers to the effect that they have on civil litigation processes. In particular, Polinsky (1997) argues that the uncertainty and unpredictability that punitive damage claims inject into a case may increase both the rate and amount of settlements, thus implying that punitive damages carry systemic consequences for the general processing of tort claims. This paper represents the first, empirical examination of this implication. With one of the largest and most comprehensive data sets of tort litigation (over 25,000 cases filed from 1994 through 1997 in several counties in Georgia), we analyze both cases that are likely to have caps on punitive damage awards and cases that are likely to be uncapped. We examine the effect of the decision to seek punitive damages on several major decision points in the tort litigation process in a series of logit regression models. With extensive control variables for type of case and plaintiff, defendant, and case characteristics, we find that seeking punitive damages has no statistically significant effect on most phases of the tort litigation process.

Tort, punitive damages, tort reform, litigation

Abstract:
The political case for tort reform is based in large measure on the perception that there are too many frivolous law suits and too many excessive jury awards. While there is considerable empirical evidence casting doubt on both these propositions, they remain the linchpins of the tort reform movement. Scholars, lobbyists, and legislators all have had a voice in the tort reform debates. The viewpoints of trial judges, however, have been largely absent. This is unfortunate because trial judges are the government officials with the closest view of the tort litigation system. They are the ones who see tort litigation on a day-in, day-out basis and are therefore uniquely qualified to comment on the extent of problems in the system. This study begins to fill this void by reporting on the views of Georgia Superior Court and State Court judges on tort litigation in their courts.

Juries, Tort Reform, Georgia

Abstract:
Our research began with interviews of experienced attorneys who prosecute and defend civil rights and employment discrimination cases. We set out to determine the extent to which offers of judgment under Federal Rule of Civil Procedure 68 ("FRCP 68" or "Rule 68") are made in these type of cases and the reasons why that Rule is or is not used. We focused on civil rights and employment discrimination litigation because it is in those cases where Rule 68 has the greatest potential to stimulate an early resolution of the dispute. Rule 68 provides the offeror greater leverage in civil rights and employment discrimination cases than in most other types of civil litigation, because the potential sanction to the prevailing offeree who turns down and fails to improve upon the offer includes the forfeiture of post-offer statutory attorneys' fees. And in these cases, fees often constitute the greater part of a plaintiff's recovery.

In this, our second report, we discuss how Rule 68 might be amended to make it a more effective tool for stimulating the prompt and fair resolution of civil rights and employment discrimination actions. Our suggested potential amendments are drawn largely, but not entirely, from two sources: the comments and suggestions made by the attorneys we interviewed, and the practices that have evolved in states that have similar provisions in their respective rules of civil procedure. 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.

FRCP Rule 68