Drafting an offer of judgment can be tricky business. In State ex rel. Landenberger v. Project Return, Inc. the court warns:
It has been said that, “[i]f there is any occasion in civil litigation which calls for caution and care by counsel, it is the drafting of a Rule 68 offer.” (citation omitted).
The case contains an excellent discussion of Rule 68, its shortcomings and how to avoid getting embroiled in litigation over the terms of an offer of judgment. In Landenberger, a $5000 offer of judgment, which was intended to conclude the litigation, spawned a battle to set aside the plaintiff's acceptance and resulted in an appeal.
Be careful.
Dan Berexa
Nashville, Tennessee
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