Rule 68 Offers of Judgment in Personal Injury: Responding, Countering or Rejecting

Federal Rule of Civil Procedure Rule 68 provides defense counsel with a tool to urge a plaintiff into a settlement. Expressly, the rule permits defense counsel to make a pre-trial offer of judgment on specified terms and provides for recovery of all the offeror’s costs if the outcome is less favorable than the Rule 68 offer.

Plaintiff counsel handling a Rule 68 offer of judgment must be well-versed in the requirements and consequences of accepting, countering or rejecting in order to avoid shifting financial risk to the client. The jurisdiction of the case governs any conditions and results of a Rule 68 offer of judgment.

Listen as our experienced panel of litigators discusses the use of Rule 68 offers of judgment to induce settlement, the consequences of receiving an offer, and the considerations in accepting, countering or rejecting the offer.

1. Overview of Rule 68 of the Federal Rules of Civil Procedure

   1. History
   2. Requirements
   3. Strict compliance
   4. Exemplar form
2. Plaintiffs’ considerations in responding to or rejecting a Rule 68 offer
   1. Consequences of responding or rejecting
      1. Three scenarios
         1. Plaintiff’s verdict greater than
         2. Defense verdict – no post-offer fees
         3. Plaintiff’s verdict less than offer – post offer costs
3. Jurisdictional issues
   1. Circuit split: do “costs” include “attorneys fees”
   2. How do state offer of judgment statutes factor in?

The panel will review these and other critical issues:

• What are the requirements of a Rule 68 offer of judgment?
• What should counsel consider in accepting, responding to, or rejecting an offer of judgment?
• How do different jurisdictions govern conditions and consequences of a Rule 68 offer?