In these troubling times, there are a few things that all New York lawyers can agree on. First, we have never seen a complete shutdown of our entire state’s court system for this long a period. Not during the events of 9/11, never like now. Second, when you think of the New York State Unified Court System words like “efficient”, “nimble” and “sanitary” do not exactly leap to mind. Lastly, the CPLR (the unique system of civil procedure for NY Courts) reads and acts like it was written during the Spanish Flu Pandemic of 1918 and could use a refresh. All of the foregoing factors demand that we think differently and take action.

With one of the busiest court systems, in the world, closed and getting more and more backlogged every day, a radical solution is sorely needed to get litigation moving again. Now, as a matter of practice, New York has an Offer of Compromise CPLR provision which is basically arcane and useless in modern litigation (this topic is a whole different article). To aggressively combat the hopeless legal backlog in a closed system, New York needs a device worthy of the Empire State with a major twist.

Forthwith, New York needs to adopt Federal Rule 68 Offer of Judgment (“OOJ”) (and replace the CPLR procedure) with some radical changes for a period of 1 year (and then the normal Rule 68 provisions would continue after that time). Again, for the first year of enactment, a sweeping solution dictates that only the defendant can submit an OOJ on a case. Second, for this first year, if the plaintiff fails to exceed the OOJ, then the defendant would be entitled to recover legal fees form the time of the OOJ (including disbursements) capped at $75,000.00. This sum would be automatically deducted from any judgment for the plaintiff that did not “beat” the OOJ. Finally, the plaintiff would be entitled to a 30-day extension of any defendant OOJ just for the asking.

Of course, we should anticipate our colleagues on the plaintiff’s side will cry out that this procedure is not fair. Maybe it isn’t totally fair but only by “a little bit”. Too many times, games are played by the plaintiff’s bar with OOJ’s. In another state, we recently got a $10 million OOJ, on a case worth substantially less, as a “conversation starter” from plaintiff’s counsel. Well, it started a colorful conversation but not what the plaintiff wanted to hear. To clear up the backlog and to rapidly settle cases, which is good for plaintiffs, we simply cannot have diversions with OOJ’s in these difficult times.

By allowing only defendants to serve OOJ’s for the first year, the defense bar would have added incentives to properly call the value of the case to give plaintiffs something serious to consider. In addition, insurers can see cycle time of cases, which could reach train wreck metrics, begin to normalize.

Make no mistake, this plan is bold and very out of the ordinary for New York litigation. Given the events that we are living through, a new approach for the mutual benefit of legal practice requires a lot of innovative thinking and calls for us to be a “little out of order.”