Rule 68: The Often-Overlooked Defense Tool

Ian H. Fisher, Federal Rule 68, A Defendant's Subtle Weapon: Its Use and Pitfalls, 14 DePaul Bus. L.J. 89, 91 (2001) (citing Marek v. Chesny, 473 U.S. 1, 6 (1985)). Where a plaintiff rejects an offer of judgment, it is thereafter faced with the possibility of: 1) paying a defendant's post-offer costs; and 2) being precluded from recovering its own post-offer costs. Moreover, Rule 68 may be particularly effective against the contingency fee plaintiff. Plaintiffs who have retained counsel on a contingency fee basis are especially sensitive to Rule 68 offers of judgment. Until a Rule 68 offer is made, the contingency fee plaintiff faces no real direct financial risk in pursuing the litigation. A Rule 68 offer, however, forces the contingency fee plaintiff to weigh the possibility of having to pay the defendant's costs against the likelihood of obtaining a judgment more favorable than the Rule 68 offer. (This article does not address the application of Rule 68 in the class action and multiple plaintiff contexts. Some of the suggestions contained in this article may not be applicable in those contexts.) In product liability cases 'particularly damages cases involving years of discovery and expensive experts ' Rule 68 may be an invaluable defense weapon.