Offer of Judgment

When the offer of judgment is used

Timing: at least 14 days before the date set for trial (Rule 68(a)). Dispositive motions ask the court to decide all or part of a case without a full trial. They usually follow discovery.

What the rule requires

• An unaccepted offer is considered withdrawn, but it does not prevent a later offer. Evidence of it is not admissible except in a proceeding to determine costs (Rule 68(b)).
• 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 (Rule 68(d)).
• Only a party defending against a claim can make a Rule 68 offer. Many states have their own offer-of-judgment or settlement-offer rules, such as California Code of Civil Procedure § 998.

In practice, read each requirement closely. Then check whether your court adds anything of its own. For example, many courts set page limits, formatting rules or a duty to confer with the other side first.

You can read the full text of Fed. R. Civ. P. 68 online. Also, the federal judiciary publishes the current rules and recent amendments.

The offer of judgment in state court

This page covers the federal version. In state court, the offer of judgment may have a different name, a different deadline or a different form. For example, a state may count days differently or require a separate notice. So start with your state’s rules of civil procedure, then check the local rules. Our state procedures guide links to the official rules for every state and DC.

Key terms

In addition, these terms come up often with this procedure:

• Offer of judgment: a formal offer by a party defending against a claim to allow judgment on specified terms.

Related procedures

Similarly, these procedures often come up alongside it:

• Bill of Costs: the prevailing party's itemized request for the court costs it may recover from the losing party. Under Rule 54(d)(1), costs other than attorney's fees should be allowed to the prevailing party unless a federal statute, the rules or a court order provides otherwise. Costs against the United States may be imposed only to the extent allowed by law.
• Motion for Attorney's Fees and Bill of Costs: requests after judgment for costs and, where a statute, rule or contract allows, attorney's fees.
• Voluntary Dismissal: the ways a plaintiff can end its own case.

Before you rely on this page

Always read the current rule yourself instead of relying on a summary. Next, check the local rules and the judge’s standing orders, since they often add steps. Then look for recent decisions from your court that apply the rule. Finally, talk to a licensed attorney about your situation. You can find one in our directory.

State court procedure for this filing

The federal rule above applies in federal court. In state court, the same filing is governed by that state's own rules of civil procedure, statutes and local court rules. Many states model their rules on the Federal Rules of Civil Procedure, so the requirements are often similar, but names, numbers, deadlines and forms can differ. Always use the version that applies to the court where your case is filed.

Find the rule in your state

In your state's rules, look for the rule on offer of judgment. In states that number their rules like the federal rules, it is often the same rule number as the federal rule.