The Federal Rules of Civil Procedure generally provide only the “rules of the road” on which litigation is conducted. However, in some areas the Rules step outside of this role and attempt to overtly encourage cooperation. One such rule is Rule 68, which allows a defendant to make an offer of judgment to the plaintiff, and provides that if the plaintiff refuses and subsequently wins less money than the defendant offered, the plaintiff must cover the defendant’s costs. Rule 68 was launched into prominence when the Supreme Court ruled, in Marek v. Chesney that a Rule 68 offer could negate the operation of attorney’s fee-shifting statutes. A storm of proposals, counter-proposals, analyses and critiques of the Rule soon followed. This article compares Rule 68 to Rule 4(d), which has been operating quietly for some time to encourage parties to cooperate to avoid the costs of service of process. The comparison serves to highlight some of the unappreciated features of Rule 68 as it currently stands, and some of the potential pitfalls to the commonly proposed expansion of the rule. The article concludes by offering a reform proposal designed to enhance the likelihood of reasonable settlements while avoiding the normative and practical problems inherent in expanding Rule 68.

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