Federal Rule 68 Offers Of Judgment: An Underutilized Tool For Defense Counsel

Many litigators are familiar with Federal Rule of Civil Procedure 68, but few fully appreciate its strategic value in the defense arsenal. Although straightforward in operation, Rule 68 can be a powerful tool for influencing settlement negotiations, and in some cases, limiting a plaintiff’s ability to recover post-offer attorneys’ fees.

This article examines the Rule 68 framework, the critical question of when attorneys’ fees qualify as recoverable costs, and key considerations for practitioners litigating in the Seventh Circuit and the Northern District of Illinois.

Federal Rule 68 – What is it?

Rule 68 authorizes a defendant to serve a formal offer of judgment at least 14 days before trial. The plaintiff has 14 days to accept the offer. If accepted, either party may file the offer and notice of acceptance, and the clerk must enter judgment accordingly. If the offer is not accepted within 14 days, it is deemed withdrawn and generally cannot be used in the litigation except in a