Rule 68 Offers of Judgment: The Practices and Opinions of Experienced Civil Rights and Employment Discrimination Attorneys

This Faculty Working Paper has been updated and posted within the Faculty Scholarly Works Series. It is currently available here.


We were interested in learning why Rule 68 is not a more prominent feature of civil rights and employment discrimination litigation. Why is it not used more frequently in the very types of cases in which defendants have the greatest economic incentive to make offers and plaintiffs have the most to lose if they refuse them? We harbor no illusion that Rule 68 is a panacea for dispute resolution. But it is one tool for ratcheting up the pressures for an early settlement with a measure of legal compulsion. Our interest in Rule 68 is not driven by the belief that too many cases go to trial. Indeed, it appears that the civil trial has become a notable rarity - by one respected account, more than 98% of federal civil litigation is resolved by means other than trials. Nevertheless, Rule 68 may harbor the potential to speed up the settlement process and thereby produce significant economic savings to the parties, with correlative savings to the courts and the taxpayers who fund them. Our contribution to the policy discussion is to report the views of experienced practicing attorneys who decide on a daily basis whether to make or accept offers of judgment. We conducted in-person, in-depth interviews with sixty-four experienced litigators who prosecute and defend civil rights and employment discrimination claims. This is the first such nationwide empirical inquiry into the incidence of practitioner use of Rule 68 in the federal fee-authorization cases where, after Marek, one would expect its use to be most common. Part II describes the methodology we used in constructing this study. Part III discusses the technical aspects of Rule 68 and how they might contribute to use or non-use of offers of judgment. Part IV confirms the anecdotal evidence that Rule 68 plays little role in civil rights or employment discrimination litigation throughout most of the nation's federal courts. However, there are a few districts where Rule 68 has become a more than occasional part of evaluating and processing civil rights, although not employment discrimination, cases. Part IV also summarizes the primary reasons advanced by experienced attorneys for the infrequent use of Rule 68. Part V reports on the reactions of these attorneys to various proposals for reform.