MBE Rules · Civil Procedure
Offer of Judgment
FRCP 68
The rule
A defendant's pre-trial offer of judgment shifts post-offer costs to a plaintiff who wins less than the offer; it applies only when the plaintiff wins, and 'costs' include attorney's fees only when the substantive statute defines them as costs.
In plain English
An Offer of Judgment is a proposal made by a defendant before trial to settle the case for a specific amount. If the plaintiff rejects this offer and ultimately wins less than the amount offered, they must pay the defendant's costs incurred after the offer, which can include attorney's fees only if specified by the relevant law.
Worked example
Defendant offers the plaintiff $50,000 to settle a personal injury claim before trial. The plaintiff rejects the offer and goes to trial, ultimately winning $40,000. Since the plaintiff won less than the offer, they are responsible for the defendant's post-offer costs.
Memory hook
Reject the offer, pay the cost!
The trap
Exams often present scenarios where students must determine if the plaintiff's recovery is less than the offer, but they may overlook the requirement that costs only shift if the statute allows for it.
How examiners test it
Questions typically involve a fact pattern where a defendant makes an offer, and students must analyze the implications of the plaintiff's eventual recovery in relation to the offer.
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