Rule 68 Offers and Civil Rights Claims
By Jess Zeletes, on October 24, 2014
Posted in 42 U.S.C. 1983, Fourth Amendment, Police Brutality and Excessive Force, Punitive Damages, Race Discrimination, Sex Discrimination, Sexual Orientation Discrimination, United States District Court
Rule 68 of the Federal Rules of Civil Procedure contains an interesting and nuanced option for civil defendants to settle a case. Rule 68 states in part, “At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” Fed.R.Civ.P. 68(a). Essentially, the defendant may offer the plaintiff a settlement amount to try and end the case.
Here’s the catch for the defendant: if the plaintiff accepts the offer, judgment is entered against the defendant. Similar to a plea bargain in a criminal case, the defendant is admitting liability to avoid going to trial.
Now, here’s the catch for the plaintiff: if the plaintiff does not accept the offer and takes the case to trial and the jury awards the plaintiff an amount in damages less than the defendant’s offer or no damages at all, the plaintiff must pay for all of the defendant’s costs that were incurred after the offer.
In other words, Fed.R.Civ.P. 68(d). Rule 68 seems to be a double-edged sword when not used strategically. (more…)