Wednesday, April 22, 2009

A definite push towards a settlement

In some kinds of mediation/negotiation, the main issue is how much one party is obliged to pay to another. One of the reasons such a mediation/negotiation can fail can be is because the party who is claiming might not agree to any offer (even if it is reasonable) by the other party if he feels even though the chances of him getting an award better than the offer are very slim, he has nothing to lose by continuing with the litigation and even with a lower award he will be able to force the costs of litigation on the other party.

If this is indeed the practice, it seems unfair on many counts. First the party against whom the claim is made is forced into a litigation even when he is willing to settle. Assuming the court awards the claimant an amount lesser than the offer made by the opposite party, the court has in fact held that the opposite party's substantive rights are more than what he is willing to settle for. However, by imposing costs on the opposite party, the court gives the claimant an undue incentive to increase the burden of pending litigation on the court.

Relating to this I would like to call the attention of the reader to rule 68 of the US Rules of Civil Procedure
It reads-

Rule 68. Offer of Judgment

(a) Making an Offer; Judgment on an Accepted Offer.

More than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.

(b) Unaccepted Offer.

An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.

(c) Offer After Liability Is Determined.

When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time—but at least 10 days— before a hearing to determine the extent of liability.

(d) Paying Costs After an Unaccepted Offer.

If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

(c) and (d) are especially important here. What such a rule does is not just set right the inequity I pointed out earlier but also gives the claimant a strong reason to agree to a reasonable offer of settlement. Someone told me that this is in practice in India too, but I couldn't find the relevant provision anywhere and can't think of any instance where I've seen this happen. Does seem indeed to be a necessary change. What say?

Tuesday, April 7, 2009


The Legal Services Clinic had organized a Legal Literacy Programme in the village of Kootgal in Ramnagar on 5 April, 2009. So one fine Sunday morning, six of us form the National Law School set forth to Kootgal. The audience was a group of approximately 35-40 women who are members of the Devamma Trust. The LSC group performed a skit on domestic violence and dowry harassment in a manner that the audience could relate to. The skit was well received and the captive audience interacted with us following the skit. On being told about the Domestic Violence Act and how they could make use of it to seek legal help, some women shared their problems with us. The programme ended with us promising to return to the village for more such LLPs on demand from the audience. The LLP seemed to have been useful for these women and this made us feel like we were of some help.
Another thing we carried back with us is an awareness of the kind of problems faced by the people in this village, which we gathered from our interactions with them. The village does not seem to have a working drainage system with many residents having to bear with the stench that ensues. Also, there was an understandable fear of falling ill among the villagers. Another problem is that there are no public latrines in the village with the effect that open spaces close to the homes of people were used instead leading to unhygienic conditions. One other problem that the women were bogged down by was the inability to obtain ration cards. Many of them seem to be in dire need of the same and nothing has been done to secure them to these women till date. The other problem that we sensed was that the village was not availing of all the programmes that the central and state governments sponsor like the widow pension scheme among a host of others.
The LSC hopes to help the villagers in meeting these difficulties and solving their problems in the future monthly trips that we plan to make.
Just as we were about to take leave following the lunch that we were served, a woman came up to two of us and asked if we could help her with some property dispute. There is now another case for the LSC to take up in the future and hopefully a chance to help someone in need of justice.
Thus the trip was an eventful and fulfilling experience for the six of us who went. The six are:
Ashwita Ambast
Gowthaman Ranganathan
Lakshmi Nair
Sahana Manjesh
Sahil Kher
Vikram Hegde

-Sahana Manjesh