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ARTICLE · 16 JULY 2024

50 State Survey: Offer Of Judgment Statutes And Rules

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Most states have an offer of judgment provision, and many of them are patterned after Federal Rule of Civil Procedure 68. Unlike Fed. R. Civ. P. 68, some states allow either party—not just the defendant—to make an offer of judgment.

United StatesLitigation, Mediation & Arbitration
M. Elizabeth Roper
M. Elizabeth Roper
Megan E. Donaldson
Megan E. Donaldson
Denise S. Lee
Denise S. Lee
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Most states have an offer of judgment provision,1 and many of them are patterned after Federal Rule of Civil Procedure 68. Unlike Fed. R. Civ. P. 68, some states allow either party—not just the defendant—to make an offer of judgment.2 Even more significantly, a few states also allow a rejected offer to serve as an independent basis for an award of attorney's fees. Federal courts in diversity cases do not always apply state statutes, but in some cases, these statutes have been deemed substantive and have been applied in federal court.3

Recovery of attorney's fees is one of the most significant factors that increases the value of making an offer of judgment. In this survey, we will first address states that allow attorney's fees after a rejected offer—although some of these statutes only allow for a limited fee collection. Second, we will discuss offers of judgment that are more like Fed. R. Civ. P. 68, permitting awards of costs only.

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