Posted: October 6, 2005
Rules of Civil Procedure
URCP 004. Process. Amend. In conjunction with repealing Rule 71B, permit case to proceed against parties who are served.
URCP 006. Time Amend. Permit 3 additional days in which to respond if notice is served by mail, fax, or electronic service.
URCP 062. Stay of proceedings to enforce a judgment. Amend. Establishes an automatic 10-day stay on enforcing a judgment.
URCP 064C. Writ of attachment. Amend. Permits a writ of attachment when the writ is authorized by statute.
URCP 068. Offer of judgment. Amend. Changes name of rule to “Settlement offers.” Makes results of failure to improve bi-directional.
URCP 071A. Process in behalf of and against persons not parties. Renumber and Amend. In conjunction with repealing Rule 71B, renumber Rule 71A as Rule 71. Gender neutral text.
URCP 071B. Proceedings where parties not summoned. Repeal. Rule is contrary to due process.
This comment concerns the amendment to Utah R. Civ. P. 68. The amendment’s summary indicates that the offeror may recover expert witness fees and deposition recordings as part of “costs.” I have read and re-read the rule but don’t see any reference to these items. Is the word “costs” defined elsewhere?
With regard to the proposed changes to Rule 68, I am sure that this has been discussed, but I believe that it would go a long way to assist in the resolution of cases in which attorneys’ fees are otherwise allowed to also include a provision that would allow an award of attorneys fees against the party who fails to obtain a more favorable award. As the Proposed Rule reads, a party may still take the risk of pursuing an unrealistic or even abusive litigation strategy without any risk that it will be liable for the other side’s attorneys’ fees if it refuses a reasonable settlement offer. I believe that result is inconsistent with the intent of this rule which has as its primary purpose the encouragement of resolution of litigation prior to trial. The risk of an award of attorneys’ fees will cause litigants to be more reasonable in considering settlement offers. Likewise, it will protect litigants with limited financial resources from being overrun by parties who can afford to take illogical risks in their litigation strategy. Such a change would level the playing field for litigants and increase fairness in commercial litigation.
I agree with Mr. Johansen’s comments entirely. There needs to be a provision for attorney’s fee’s so that there is “teeth” when plaintiff makes an offer. I have seen many small accident accident or construction claims (amounts of less than 10,000)and which have no attorney fee provision, which are litigated for years, because the defendant refuses to make an offer. Idaho has a similar provision to provide for attorney’s fees. I think that many small cases could be dispensed with much earlier if by making an offer, the other party now realizes that they may be subject to attorney’s fees. When there are attorney’s fees at issue, parties are much more realistic in their assessment, particularly with small cases.
I agree entirely with the comments of Mr. Duffin and Mr. Johansen regarding Rule 68.
In addition, with regard to the proposed amendment to rule 6, shouldn’t service by fax or electronic mail be treated as hand-delivery rather than regular mail? The justification for allowing parties 3 extra days to respond to papers served by mail is that it takes longer to get them so the opposing party needs additional time to reply. This justification does not apply to service by fax and email. If anything, the party being served will receive the papers sooner when served by fax or email. Accordingly, such service should be treated like hand-delivery. Parties should not be given the extra time to reply that is necessary when service is by regular mail.
I agree with the proposed Rule 68 changes. However, Rule 68 will never really have teeth until it is amended to include attorney fees as costs. The last time I checked (several years ago), there were some states which included attorney fees in recoverable costs if the party rejecting the settlement offer didn’t do better at trial. I suggest that attorneys fees be added as recoverable costs. Gutsy?
I reviewed the proposed amendment and the comments with interest. It is my understanding that the issue of including attorneys fees in an amended Rule 68 was vigorously opposed by both plaintiffs and defendants advocates on the committee, Mr. King and Ms. Kidman. They both agreed that attorneys fees ought not to be included.
In mediation we always tell the parties that a reason to settle is because there is no such thing as a 100% likelihood that any party will prevail. Including attorneys fees in Rule 68 will dissuade people who have valid claims from bringing them.
Also in mediation we find that the cases which are most difficult to settle are those with either a statutory or contractual attorneys fees provision. The parties then have to guess at what is a reasonable amount for attorneys fees, in addition to guessing at a value for the underlying claim, throwing another element of uncertainty into the mix.
Including an attorneys fees provision in the rule will only make cases harder to settle and prolong litigation.
This comment goes to the proposed elimination of 71B and the changes to Rule 4. The real problem with 71B is not that parties are being served after the judgment. The due process issue lies in that the rule as written does not provide an avenue for a defendant to object to the contents of the complaint.
The ability to bring a liable party into the lawsuit after judgment, as opposed to starting a new lawsuit, promotes efficiency in the courts. If a plaintiff is forced to begin a new lawsuit each time, this will increase the number of cases in the courts. Additionally, because the new party would have all of the same defenses available, whether she was served pre or post judgment, there is no prejudice to the new party if they are served post-judgment.
The remedy is to have the new party served with a traditional 20-Day summons. This can still be accomplished by eliminating 71B, but by altering the proposed Rule 4 changes to allow service post judgment to additional defendants, as long as one of the defendants was served within 120 days of filing the complaint.
I agree with Mr. Wilde’s comments on proposed rule 68.
Why should a party who has a valid claim and who rejects an offer of, say, $10,000 be liable to pay the wrongdoer’s attorney’s fees (which could easily exceed his damages) if he happens to get a penurious jury that only awards him $9,999?
Litigation is uncertain enough as it is. If a party who rejects what he considers an inadequate offer of settlement puts himself at risk to pay the other side’s attorney’s fees (in addition to court costs), that will only increase the pressure on him to accept an unreasonable settlement offer, which in turn will encourage opposing parties to make unreasonable offers because they have nothing to lose and everything to gain.
That imbalance could be corrected if the party who made the offer could be liable for the offeree’s attorney’s fees if the offeree does better at trial. But then we would be well on the way to adopting the British (loser pays) rule on attorney’s fees, which this country has long rejected, for good reasons.
At a minimum, the court should give the proposed rule a chance to work before taking such a drastic measure as to shift responsibility for a party’s attorney’s fees to his opponent.