Practitioner's Handy Guide to Rule 68 Offers of Judgment: Defense Counsel's Sword

By Staton, Georgia A. | Defense Counsel Journal, July 2000 | Go to article overview

Practitioner's Handy Guide to Rule 68 Offers of Judgment: Defense Counsel's Sword


Staton, Georgia A., Defense Counsel Journal


Offers of judgment can be used to expedite settlements and control fees and expenses. But the offers require thorough and complete draftsmanship

DEFENSE counsel shouldn't overlook Rule 68 of the Federal Rules of Civil Procedure, which outlines the procedure for making offers of judgment, a good weapon for defense counsel. The purpose of Rule 68 is to encourage settlement and avoid further litigation. It states:

      At any time more than 10 days before the trial begins, a party defending
   against a claim may serve upon the adverse party an offer to allow judgment
   to be taken against the defending party for the money or property or to the
   effect specified in the offer, with costs then accrued. If within l0 days
   after the service of the offer the adverse party serves written notice that
   the offer is accepted, either party may then file the offer and notice of
   acceptance together with proof of service thereof and thereupon the clerk
   shall enter judgment. An offer not accepted shall be deemed withdrawn and
   evidence thereof is not admissible except in a proceeding to determine
   costs. If the judgment finally obtained by the offeree is not more
   favorable than the offer, the offeree must pay the costs incurred after the
   making of the offer. The fact that an offer is made but not accepted does
   not preclude a subsequent offer. When the liability of one party to another
   has been determined by verdict or order or judgment, but the amount or
   extent of the liability remains to be determined by further proceedings,
   the party adjudged liable may make an offer of judgment, which shall have
   the same effect as an offer made before trial if it is served within a
   reasonable time not less than 10 days prior to the commencement of hearings
   to determine the amount or extent of liability.

The rule requires both parties to litigation to evaluate the risks and costs and to balance them against the likelihood of success on trial on the merits. The evaluation becomes more tricky, as illustrated by the U.S. Supreme Court's decision in Marek v. Chesny,(1) when attorneys' fees become a component of such an offer, as they do in actions brought under the Civil Rights Act, 42 U.S.C. [sections] 1989, by virtue of 42 U.S.C. [sections] 1988, and the offer becomes even more important than in other litigation.

The effect of an offer of judgment in civil rights cases is a cost-shifting provision designed to encourage settlement by forcing plaintiffs to weigh the risk of incurring post-offer costs and fees they may not be able to recover, even if they are successful on their basic claims. Because attorneys' fees are included as costs of a federal civil rights action under 42 U.S.C. [sections] 1988, the cost-shifting provision of Rule 68 applies to limit a prevailing plaintiff's recovery of fees if the plaintiff rejects an offer that exceeds the damages award.

In Marek, the Supreme Court made it clear that the term "costs" in a Rule 68 offer includes attorneys' fees awardable under 42 U.S.C. [sections] 1988. If an offer provides that costs are included or specifies an amount for costs and the plaintiff accepts the offer, then the judgment includes costs. If the offer is silent on the issue of costs, the court must include costs under the terms of Rule 68 in any judgment awarded. In short, a defendant making an offer of judgment that has an attorneys' fees component under 42 U.S.C. [sections] 1988 must take into account that attorneys' fees will be added as "costs" under Rule 68.

RULE 68 OFFERS

A. Careful Drafting

Because the effects of a Rule 68 offer can be significant to both parties, careful drafting is in order. In Erdman v. Cochise County,(2) a defendant learned the effects of inartful drafting the hard way. The question was whether a Rule 68 offer of judgment may be withdrawn after acceptance based on the offeror's failure to recognize that "costs" in actions under 42 U. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Practitioner's Handy Guide to Rule 68 Offers of Judgment: Defense Counsel's Sword
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.