New Jersey’s rules of evidence can accurately be characterized as restrictive and chary in nature. Our judicial system is risk averse. An attorney must labor to comply with carefully tailored proscriptions before admission of sundry forms of evidence. Every scintilla of evidence must be scrutinized to ascertain if it passes evidentiary muster. Ours is a system of exclusion—only a few items are able to filter through the finely tuned rules governing our trials. For example, most hearsay is inadmissible and there are only a small number of exceptions, each of which requires an array of conditions to be fulfilled. And the rationale for such circumspection is to ensure that only the most reliable and credible evidence is marshaled before the jury. Our search for the eternal truth, which epitomizes the goal of our justice system, calls for nothing less.

Against this cautionary backdrop our Offer of Judgment Rule, R.4:58-1 et seq., interjects itself in stark relief. This is a bold, provocative rule, with potential draconian and devastating effects on the outcome of a trial, often capped by a dramatic reversal of the verdict. It presents limitless risk, notwithstanding that most of our other rules are risk averse. The Offer of Judgment Rule transforms a carefully constructed trial—where the evidence is adduced in a precise and limited fashion in conformance with our stringent rules—into a crapshoot, where all bets are off.

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