Publication Date
2006
Abstract
Offer of judgment provisions, initially creatures of state law but codified in 1938 as Rule 68 of the Federal Rules of Civil Procedure, are neither widely used nor widely understood. Both federal and state offer of judgment rules operate to penalize a plaintiff who fails to accept, in light of the ultimate judgment, a reasonable settlement offer. Scholars have often criticized the federal rule's minimal impact as a tool to encourage settlement, and several states, including Georgia in a recent enactment, have made efforts to create offer of judgment provisions that provide severe penalties-attorney's fees and costs-for an offeree who rejects a reasonable settlement offer and then fails to recover more than twenty-five percent of the offer amount at trial. This Note reviews the recent Georgia rule in its ambiguity and complexity, and, ultimately, its inefficacy as a reasonable effort at tort reform. The Georgia rule has the potential to cause great harm and to violate the basic principles of tort law: it provides fertile ground for manipulation by defendants to discount settlements, as well as the potential to permit plaintiffs to receive more recovery than would normally be awarded to make them whole. In an era of tort reform, reform efforts targeted at procedural rules, like offer of judgment statutes, may have tremendous intended and unintended consequences on tort recovery.
Recommended Citation
McAlister, Merritt E.
(2006)
"The Swift, Silent Sword Hiding in the (Defense) Attorney's Arsenal: The Inefficacy of Georgia's New Offer of Judgment Statute as Procedural Tort Reform,"
Georgia Law Review: Vol. 40:
No.
3, Article 12.
Available at:
https://digitalcommons.law.uga.edu/glr/vol40/iss3/12
