The Recommended Form and Content of a Rule 68 Offer of Judgment

The offer of judgment should be in writing and state that the defendant is offering to allow judgment to be taken against it for a specific dollar amount (which typically is no less than the amount of the plaintiff’s lost wages through the date of the offer, filing fees, and other recoverable costs), plus an unspecified amount described as “the reasonable attorneys’ fees incurred by the plaintiff through the date of the offer in prosecuting his claims against the defendant.”

There is risk that the plaintiff will accept offer and a dispute will ensue regarding the amount of the unspecified “reasonable attorneys’ fees” offered. To guard against this, it is advisable to include the following language in the offer of judgment: “The amount of the ‘reasonable attorneys fees’ will be either agreed upon by the defendant and the plaintiff or, in the absence of an agreement, determined by the Court.” It also is a good idea to add the following language to dissuade the plaintiff from seeking judicial intervention to determine the amount of fees at issue: “Pursuant to the terms of this offer, the plaintiff shall not be entitled to recover any post-offer attorneys’ fees that he incurs.” Thus, if the Court is required to determine the amount of pre-offer “reasonable attorneys’ fees,” the plaintiff shall not be entitled to recover the post-offer attorneys fees’ that he incurs in litigating the amount of his pre-offer attorneys’ fees.

Finally, the defendant should include the following language in the offer to ensure that the offer is not later used against it: “This offer of judgment is made for the purposes specified in Rule 68 and is not to be construed either as an admission that the defendant is liable in this action or that the plaintiff has suffered any damage. This offer of judgment, if accepted, is not to be admissible as evidence of liability or for any other purpose in any proceeding.”

In sum, Rule 68 offers of judgment are useful in many litigation contexts, but they play an even more important role in employment cases involving statutes with one-sided fee-shifting provisions. They encourage reasonable settlement positions, reduce the unnecessary expenditures of fees and costs, and promote judicial economy.