Fed. R. Civ. P. 68 — Offer of Judgment
Plain English
Rule 68 is a settlement-pressure tool for the defending side. At least 14 days before trial, a defendant can serve a formal offer of judgment. If the plaintiff accepts within 14 days, judgment is entered on those terms. If the plaintiff rejects it and then wins less at trial than the offer, the plaintiff must pay the costs the defendant ran up after the offer was made. That cost-shifting is the whole point: it forces a plaintiff to take a serious offer seriously. Whether those shifted “costs” include attorney’s fees depends on the underlying statute — under Marek v. Chesny, if the statute that created the claim defines fees as part of costs, Rule 68 shifts them too.
Key Cases & Authority
- Marek v. Chesny, 473 U.S. 1 (1985) — Where the statute underlying the claim defines “costs” to include attorney’s fees (as 42 U.S.C. § 1988 does), those fees are part of the “costs” shifted under Rule 68.
- Fed. R. Civ. P. 68(d) — If the judgment the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
- Fed. R. Civ. P. 68(b) — An unaccepted offer is deemed withdrawn and is inadmissible except in a proceeding to determine costs.
Florida Parallel
Florida’s parallel is Fla. R. Civ. P. 1.442 — Proposals for Settlement (note: Florida’s rule is broader — either side may serve a proposal, and it interacts with the fee-shifting statute § 768.79).
About this rule walkthrough
Part of The Federal Rule Book, hosted by John M. Phillips — Board Certified Civil Trial Lawyer, Court TV analyst, admitted in 8 states + 9 federal districts + SCOTUS.
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Educational only — not legal advice.
Rule Text (verbatim from the Florida Supreme Court)
(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, 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 14 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 An unaccepted offer is considered withdrawn, but it does not preclude a later offer.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 14 days — before the date set for 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.
Educational reference. Educational only — not legal advice.
What this rule means in plain English
Rule 68 lets a defending party serve an offer of judgment at least 14 days before trial; if the offeree rejects it and recovers less, the offeree must pay costs incurred after the offer. Whether those costs include attorney’s fees depends on the underlying statute (Marek v. Chesny).