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Rule 68 appears at first blush to promote settlement by forcing a plaintiff to either ac- cept a proffered offer of judgment or risk paying the defendant's subsequent litigation costs in the event the plaintiff recovers less than the amount offered.
If the defendant is unwilling to pay, the plaintiff may: Place a lien on the defendant's property, giving the plaintiff the right to sell the defendant's property to collect the money award. The clerk of the court, when asked by the plaintiff, can place a lien on the defendant's property.
A Rule 68 Offer of Settlement raises the stakes for the party receiving an offer. If the party rejects the offer, it risks having to pay attorneys' fees and expenses of the offering party based on the outcome of the case.
§ 9-11-68, (a/k/a Rule 68 ? Offer of Settlement), allows either party in a tort case to serve the other party with a written offer to settle, so long as the offer is made 30 days after service of the summons and complaint, and not less than 30 days before trial (or 20 days if it is a counteroffer).
As the name suggests, a Rule 68 Offer of Judgment is, in fact, an offer permitting a plaintiff to accept and enter a judgment against a defendant on specified terms, subject to the court's approval of the settlement via Rule 68.
The third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible.
What is Rule 68? Federal Rule of Civil Procedure 68 allows a defendant to make an offer of judgment at any point at least 14 days before trial. After receiving the offer, the plaintiff then has a 14-day window to serve written notice accepting the offer.
If the plaintiff either (1) declines the offer; or (2) fails to respond to the offer by the deadline, then the offer is considered withdrawn. A withdrawn offer does not preclude the defendant from making a subsequent offer.