Offers of Judgment in Utah (Rule 68) and Why They Matter

Short answer: Rule 68 of the Utah Rules of Civil Procedure lets a party make a formal written offer to resolve the case. If the offer is not accepted and the final "adjusted award" is not more favorable to the party who received it, the offering party is no longer responsible for that party's post-offer costs, prejudgment interest, or attorney fees, and the receiving party must pay the offering party's post-offer costs. A judge may suspend the rule to prevent manifest injustice.

What the rule requires

Under Rule 68(c), an offer of judgment must:

be in writing;
expressly refer to Rule 68;
be made more than 14 days before trial;
remain open for at least 14 days; and
be served on the other party under Rule 5.

Acceptance must also be in writing and served. Once an offer is accepted, either party may file the offer and acceptance with a proposed judgment. That is a difference from an ordinary settlement: a Rule 68 acceptance leads to a judgment rather than just a release and dismissal.

What the offer covers

Unless the offer says otherwise, it is an offer to resolve all claims in the action between those parties up to the date of the offer, including costs, interest, and attorney fees if fees are permitted by law or contract (Rule 68(a)). A lump-sum offer is therefore usually all-inclusive. Read the terms closely: an offer can carve items in or out, and that affects how it is compared with the result later.

The consequence if an offer is rejected

Rule 68(b) says that if the adjusted award is not more favorable than the offer:

the party who made the offer is not liable for costs, prejudgment interest, or attorney fees incurred by the other party after the offer; and
the party who received the offer must pay the offering party's costs incurred after the offer.

The court may suspend the application of the rule to prevent manifest injustice. Note what the text shifts to the receiving party: costs. The rule's own wording does not make the receiving party pay the other side's attorney fees.

What "adjusted award" means

The comparison is not simply offer versus verdict. Under Rule 68(d), the adjusted award is the amount the fact finder awards plus, unless the offer excluded them, the receiving party's costs and interest incurred before the offer, and, where attorney fees are permitted by law or contract and not excluded, the receiving party's reasonable pre-offer attorney fees. If those fees are under a contingency agreement, the court determines a reasonable fee for the period before the offer.

Hypothetical, for illustration only. A defendant serves a Rule 68 offer of $60,000 that includes costs and interest. The plaintiff rejects it. At trial the jury awards $52,000. The plaintiff's pre-offer costs were $3,000 and pre-offer interest was $2,000, so the adjusted award is $57,000. Because $57,000 is not more favorable than $60,000, the defendant is not responsible for the plaintiff's post-offer costs or interest, and the plaintiff owes the defendant's post-offer costs. Change the verdict to $58,000 and the adjusted award ($63,000) beats the offer, so the rule's penalty does not apply.

Either side can use it

The rule speaks of "offeror" and "offeree," not plaintiff and defendant. An injured person can serve a Rule 68 offer too. If the defense rejects it and the adjusted award is not more favorable to the defense than the offer was, the same consequences run in the other direction.

How it connects to prejudgment interest in smaller cases

A separate statute, Utah Code 78B-5-824, governs prejudgment interest on special damages in personal injury and wrongful death cases. In Tier 1 cases, the smallest discovery tier, interest depends on the plaintiff having tendered a written settlement demand, which can include a Rule 68 offer, that does not exceed one and one-third times the judgment eventually awarded. The determining offer is the last written offer timely tendered at least 60 days before trial. Tier 2 and Tier 3 cases are not subject to that condition. The advisory committee note to Rule 68 points out this interaction. See what happens when a case goes to court for how tiers are assigned.

How we think about Rule 68, in general terms

Evaluate every offer as if the rule applies. A Rule 68 offer is a real number with a deadline; we compare it against a realistic range of outcomes, not the best case.
Timing matters. An offer made early shifts more of the later costs than one made shortly before trial, which is why both sides consider when to serve one.
Account for everything the offer resolves. Because it resolves all claims between the parties, liens and future care have to be built into the evaluation. See medical bills and liens.
It does not decide the case. A rejected offer only affects post-offer costs, interest, and any fees; it does not change the verdict itself.

An attorney reviews every offer with you, and you make the final call on whether to accept.

Common questions

How long do I have to respond to a Rule 68 offer?

The offer must stay open at least 14 days. The offer itself may give longer.

Is a Rule 68 offer the same as an ordinary settlement offer?

No. An ordinary offer carries no cost consequence if you turn it down. A Rule 68 offer must meet the rule's formal requirements, and rejecting it can shift post-offer costs.

Can a Rule 68 offer be made before a lawsuit is filed?

The rule refers to "claims in the action," so it operates within a filed case. Pre-suit offers are ordinary settlement offers; see how insurance negotiation works.

Can a judge decline to apply Rule 68?

Yes. Rule 68(b) lets the court suspend the rule to prevent manifest injustice. That is a safety valve, not something to plan around, which is why a Rule 68 offer deserves a careful look and why the decision to litigate is made with the risks in view.

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