Proposals to Amend Rule 68- Time to Abandon Ship

It is no surprise that, having included “facilitating the settlement of the case” as one of the objectives of pretrial conferences in the 1983 amendments to Rule 16 of the Federal Rules of Civil Procedure, the Advisory Committee has turned its attention to Rule 68. The Rule was intended to provide an incentive to settle by requiring that a prevailing claimant who has declined a more favorable offer of judgment pay post-offer “costs.” But, in the Advisory Committee’s view, Rule 68 has proved ineffective. The concern, apparently, is not that too few civil cases filed in federal court are settled-less than seven percent of filed cases go to trial-but, rather, that they are not settled promptly, entailing expense and delay for both the federal courts and the parties. Accordingly, the Advisory Committee has proposed to “put teeth into” Rule 68, withdrawing its initial 1983 proposal in the face of criticism and substituting a 1984 proposal designed to blunt the force of that criticism. No surprise, perhaps, but some of the rulemakers’ basic premises in proposing amendments to Rule 68 are questionable. The burden of this comment, however, lies elsewhere. Both formal legal analysis and the politics of court rulemaking counsel that the Committee, having changed course, should now abandon ship.