The offer of judgment rule, R. 4:58, embodies important and salutary public policy: cases should settle as soon as possible, and if a party holds out for an unreasonable verdict or award, that party should pay the adverse party’s litigation fees following non-acceptance of the offer. A survey recently conducted by the Civil Practice Committee suggested that the rule frequently does provide “some impetus in producing settlements.” 2018 Committee Report at 71. We wonder whether the perception will change with respect to multi-defendant cases after the Supreme Court’s Aug. 15 opinion in Wilner v. Vertical Realty, Inc., and believe the rule requires revision with respect to such cases.
The rule addresses consequences of non-acceptance of an offer by a claimant and by a defendant or other non-claimant, R.4:58-2,-3, and specifically embodies provisions relating to multiple claims and multiple parties. R. 4:58-4. Under the rule, fees are awarded to a plaintiff if the judgment exceeds 120 percent of the amount plaintiff was willing to accept in settlement. Defendant recovers if there is a verdict or award of 80 percent or less of defendant’s offer.
