What Is 'Civil Procedure 68 Or Rule 68'
State Of NY
Info on case: My case is for false arrest. Its been about 1 year, they already made a very very low offer. The stage we are out currently is next to have the 'settlement hearing'. The bad news is that today they submitted paper work for a 'Civil Procedure 68' also called a 'Rule 68'.
I did a bit of online searching and from what I found...I'm really screwed!!! I dont understand how something like this can be allowed. It really does not seem fair. How can this be....if they offer me 20k and instead we goto court and win but only win 15k, they now can sue me for attorney fee's. Or if they offer 20k and I lose, they also can sue me for attorney fee's...how can this be allowed?
Does anyone know if there is a way around this, or a way to stop it....anything or some kind of loop hole, or steps that can be taken to counter their move???
Please if anyone knows or has any idea's please take the time to explain. This is truly very important and would be very thankful for any help.
Thanks in advance,
Jon
Re: What Is 'Civil Procedure 68 Or Rule 68'
This is in federal court?
Re: What Is 'Civil Procedure 68 Or Rule 68'
Myfind, as Aaron asks, is this federal court? I will assume it is on 2 premises until you reply: 1. I could NOT find a rule 68 in NY's rules of civil procedure and 2. A false arrest claim is generally based on 42 USC 1983, which is a federal "color of law" statute.
Here is rule 68 in the Federal rules of Civil procedure:
Rule 68. Offer of Judgment
http://www.law.cornell.edu/rules/frcp/Rule68.htm
Do you have an attorney or are you representing yourself, Pro Se?
Re: What Is 'Civil Procedure 68 Or Rule 68'
I will try to clear up some questions. The case is a false arrest claim, I do have a lawyer, he told me they issued a rule 68 and have only 10 days to answer.
As for my lawyer...I am using him because it is too late in the game to look for another. And because of this, I want to know all my option before speaking again with him.
I will add more info, so hopefully some will understand why I'm asking the questions I am.
My lawyer is very good at selling, and for that reason, is why he has my case. Yes I learned a very important lesson, and that's to check your lawyers court record...I did perform this task, however it was a year later. I learned that my lawyer, who is very busy with lots of work...has maybe only once had to goto court...meaning ALL his cases are settlements.
This may not be a problem to some, but I was told that if we don't like their offer, he will goto bat for us. That he is not scared of going to trial and has gone before, on many claims.
What really pushed me over the edge was about a month ago, when my lawyer told me they made an offer and I should seriously consider it. Well, after I thought about it, I told my lawyer that it was too low and some of the similar cases I found where for mush more. (Yes, I know all cases are different and etc)
My lawyer replied with, if I don't except their offer then I should start to consider looking for another lawyer...I could not believe what I heard and when I asked him what happened to what he told me before giving him the case (he will goto bat for me) he said, it is what it is and why should he spend all his money on expense. Which I can kind of understand however when I asked him to show me similar cases that he settled on or even cases that he didn't try...he said he doesn't have to show me proof, he knows what is best.
After a little talking and saying stuff like, I cant see how you can legally drop me for something like this, and mentioning stuff like not wanting to report this. He can around and said he will see what he can do.
Yes, I know I should have looked for another lawyer but feel like so much time had passed and it would be very difficult to find another lawyer willing to take a case mid-stream.
Just a few days ago, my lawyer called to say that the other side has just issued a 'Rule 68' and explained what it means. After hearing this, I felt like he was glad this happened.
Sorry for writing so much, I was not sure the best way to explain my current situation. I would also like to ask anyone who posts, to please stay on topic of the questions/concerns I had asked. I have very limited time to decide and truly could use as much help as possible.
Please see concerns/questions I posted in the beginning. Thanks in advance.
Jon
Re: What Is 'Civil Procedure 68 Or Rule 68'
Quote:
Quoting
myfind2006
State Of NY
Info on case: My case is for false arrest. Its been about 1 year, they already made a very very low offer. The stage we are out currently is next to have the 'settlement hearing'. The bad news is that today they submitted paper work for a 'Civil Procedure 68' also called a 'Rule 68'.
I did a bit of online searching and from what I found...I'm really screwed!!! I dont understand how something like this can be allowed. It really does not seem fair. How can this be....if they offer me 20k and instead we goto court and win but only win 15k, they now can sue me for attorney fee's. Or if they offer 20k and I lose, they also can sue me for attorney fee's...how can this be allowed?
Does anyone know if there is a way around this, or a way to stop it....anything or some kind of loop hole, or steps that can be taken to counter their move???
Please if anyone knows or has any idea's please take the time to explain. This is truly very important and would be very thankful for any help.
Thanks in advance,
Jon
I wish I had some constructive thoughts for you. Obviously your ATT knows what a rule 68 filing and the case law entails and the best way to respond.
All you can do is discuss this in very strict detail, pro's and con's, and you have to make the final decision.
Good luck with the outcome.
Re: What Is 'Civil Procedure 68 Or Rule 68'
Hello again,
I appreicate your time and advice. I have tried doing a little searching online for anything with police and rule 68. I came across a few things but as you must know, law is not easy to understand, mainly when your reading it.
I managed to find a bit of info but am not sure if it could be used in my case. It read the following:
***
While a prevailing civil rights plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust," Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citations omitted), a prevailing defendant should only be awarded a fee when a court finds "`that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.'" DeBauche v. Trani, 191 F.3d 499, 510 (4th Cir. 1999) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)) (applying Christiansburg standard to cases arising under sections 1983 and 1988)). The nearly routine award of attorney fees to prevailing plaintiffs is intended to facilitate ready access to the courts for civil rights claimants. Hensley, 461 U.S. at 429
*** AND ***
Although a prevailing plaintiff in a Title VII proceeding is ordinarily to be awarded attorney's fees by the district court in all but special circumstances, a prevailing defendant is to be awarded such fees only when the court in the exercise of its discretion has found that the plaintiff's action was frivolous, unreasonable, or without foundation. Pp. 415-422.
***
Does this mean if I lose but the case is not frivolous, then I would not have to pay the defendants att???
I have been searching endlessly online. I really cant see how this can be fair. It seems like the defendants ATT has nothing to lose by putting in a 'rule 68' and everything to gain by it.
There really is nothing that can be done to get around their rule 68?
Also,
Is it possible that my ATT could have done something to prevent them from submitting a rule 68? Meaning, if my ATT submitted a 'rule xyz' first, then it would prevent the def ATT.
I know I'm reaching here but you always hear about or read about forgotten legal loop holes or legal counter tricks.
Again, I want to thank you for taking out the time and trying to help me out.
Jon
Re: What Is 'Civil Procedure 68 Or Rule 68'
Quote:
Quoting
myfind2006
Hello again,
I appreicate your time and advice. I have tried doing a little searching online for anything with police and rule 68. I came across a few things but as you must know, law is not easy to understand, mainly when your reading it.
I managed to find a bit of info but am not sure if it could be used in my case. It read the following:
***
While a prevailing civil rights plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust," Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citations omitted), a prevailing defendant should only be awarded a fee when a court finds "`that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.'" DeBauche v. Trani, 191 F.3d 499, 510 (4th Cir. 1999) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)) (applying Christiansburg standard to cases arising under sections 1983 and 1988)). The nearly routine award of attorney fees to prevailing plaintiffs is intended to facilitate ready access to the courts for civil rights claimants. Hensley, 461 U.S. at 429
Hensley quotes fees and costs under section 1988, for 1983 and other actions, as thus:
http://www4.law.cornell.edu/uscode/h...8----000-.html
To read some case law first hand, pay a visit to a University law school law library and look up 42 USC 1988, above, and read any annotations after it, maybe something can help you better reading it there. I was involved in a federal suit once and I do remember the Christiansburg Garment case by name.
Quote:
*** AND ***
Although a prevailing plaintiff in a Title VII proceeding is ordinarily to be awarded attorney's fees by the district court in all but special circumstances, a prevailing defendant is to be awarded such fees only when the court in the exercise of its discretion has found that the plaintiff's action was frivolous, unreasonable, or without foundation. Pp. 415-422.
Title 7 is not listed in section 1988:
(b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title,
Quote:
Does this mean if I lose but the case is not frivolous, then I would not have to pay the defendants att???
I can't answer that, sorry. Your ATT should be knowlegable in "costs and fees" precedent.
Quote:
I have been searching endlessly online. I really cant see how this can be fair. It seems like the defendants ATT has nothing to lose by putting in a 'rule 68' and everything to gain by it.
There really is nothing that can be done to get around their rule 68?
Also,
Is it possible that my ATT could have done something to prevent them from submitting a rule 68? Meaning, if my ATT submitted a 'rule xyz' first, then it would prevent the def ATT.
I am not an attorney, and have limited knowledge in federal matters, but I would say, NO, it was not possible to prevent a 68 filing and your att could have done nothing in anticipation of it to stop it!
If you go to a law library to research on your own, also look up rule 68 in the Federal rules of civil procedure, and pay close attention to this and the case law annotations after it for some insight:
(d) Paying Costs After an Unaccepted Offer.
If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
There are also digests, such as Dicennial with sections of case law under the heading such as "costs and fees", you can read some to be a little better in the know.
Quote:
I know I'm reaching here but you always hear about or read about forgotten legal loop holes or legal counter tricks.
Tell me about it. Federal case law is extensive and even district courts are overturned by appellate courts for an abuse of discretion, so if it sounds confusing, it is, even to me.
Quote:
Again, I want to thank you for taking out the time and trying to help me out.
Jon
You are most welcome and I hope it did not make it more confusing than before, but federal trials are complex.
Best wishes.
BOR (Bill of Rights)
Re: What Is 'Civil Procedure 68 Or Rule 68'
I cant begin to thank you enough. This is why forums become such a great place to find help, its people like you who try and take the time to share their advice.
If you happen to come across anything that you think might be helpfull please drop by this post and let me know. I have not stop searching and if I find anything I will also update it here.
best wished to you and your family,
Jon
Re: What Is 'Civil Procedure 68 Or Rule 68'
Quote:
Quoting
myfind2006
I cant begin to thank you enough. This is why forums become such a great place to find help, its people like you who try and take the time to share their advice.
You are more than welcome. Yes, these types of forums are quite valuable at times.
Quote:
If you happen to come across anything that you think might be helpfull please drop by this post and let me know. I have not stop searching and if I find anything I will also update it here.
best wished to you and your family,
Jon
If I come across anything of interest, I will post it. Good luck with the case and best wishes to you and your famly also.
BOR
Re: What Is 'Civil Procedure 68 Or Rule 68'
My main question was about getting around the rule 68 and from what I have found online, you cant.
I have come up with a new question, and that is if there is a way to prevent/stop the def att from making another, higher offer rule 68 settlement offer?
Meaning...after saying no to the def att offer of 25k, by law...they can make another settlement offer, say for 50k...under the rule 68.
Any ideas?
Jon