The Georgia offer of settlement: 75 percent, 125 percent, and 30 days open
Georgia procedure · Last verified August 17, 2026
Georgia's offer of settlement statute is a fee-shifting device, and it is symmetrical: either side can use it, and each has its own percentage threshold. It applies to tort claims, and the arithmetic is unforgiving once an offer has been rejected.
When an offer may be made
O.C.G.A. § 9-11-68(a):
At any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon the other party, but shall not file with the court, a written offer, denominated as an offer under this Code section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly.
Three timing points and a fourth worth flagging.
Not before day 31. The defendant cannot serve an offer the moment the case arrives; the statute requires more than 30 days after service of the summons and complaint.
Not inside 30 days of trial — or 20 days, if what you are serving is a counteroffer.
And it is served, not filed. "But shall not file with the court" is express. An offer that lands on the docket has been mishandled.
Tort claims only. The statute reaches a "tort claim." A contract case is outside it.
What the offer must contain
The same subsection sets out eight requirements, and they are not decorative — an offer that omits one is exposed to attack when fees are sought later.
Any offer under this Code section must: (1) Be in writing and state that it is being made pursuant to this Code section; (2) Identify the party or parties making the proposal and the party or parties to whom the proposal is being made; (3) Identify generally the claim or claims the proposal is attempting to resolve; (4) State with particularity any relevant conditions; (5) State the total amount of the proposal; (6) State with particularity the amount proposed to settle a claim for punitive damages, if any; (7) State whether the proposal includes attorney's fees or other expenses and whether attorney's fees or other expenses are part of the legal claim; and (8) Include a certificate of service and be served by certified mail or statutory overnight delivery in the form required by Code Section 9-11-5.
Requirement (1) is the one most often missed and the easiest to satisfy: the offer must say on its face that it is made under § 9-11-68. An ordinary settlement letter, however generous, does not trigger the statute.
Requirement (8) is the second: certified mail or statutory overnight delivery. Email will not do.
The two thresholds
§ 9-11-68(b)(1) — the defendant's offer:
If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.
§ 9-11-68(b)(2) — the plaintiff's offer:
If a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the plaintiff or on the plaintiff's behalf from the date of the rejection of the offer of settlement through the entry of judgment.
| Who offered | Threshold | Consequence |
|---|---|---|
| Defendant | Judgment of no liability, or plaintiff recovers less than 75% of the offer | Defendant recovers fees and expenses from rejection to judgment |
| Plaintiff | Plaintiff recovers more than 125% of the offer | Plaintiff recovers fees and expenses from rejection to judgment |
Note the window in both cases: fees run from the date of rejection, not from the start of the case. An offer made early is worth far more than the same offer made late.
The thirty days, and what a counteroffer does
§ 9-11-68(c):
Any offer made under this Code section shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree, but an offeror shall not be entitled to attorney's fees and costs under subsection (b) of this Code section to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period). A counteroffer shall be deemed a rejection but may serve as an offer under this Code section if it is specifically denominated as an offer under this Code section. Acceptance or rejection of the offer by the offeree must be in writing …
Three consequences.
Thirty days is the price of the fee claim. You may withdraw sooner, but doing so forfeits the fee-shifting benefit — unless the offeree rejected inside the period anyway.
A counteroffer is a rejection. Responding with a number ends the original offer. If the original offeror later beats its own figure, the rejection date is set.
But a counteroffer can be an offer too — if it is specifically denominated as one under the statute. This is where a negotiation can quietly become mutual exposure: both sides now have live offers, and both thresholds are in play.
How Georgia compares
| Georgia | Federal | Arizona | New Jersey | |
|---|---|---|---|---|
| Who may offer | either party | defending party only | either party | either party |
| Applies to | tort claims | any claim | any claim | any claim |
| Earliest | more than 30 days after service | more than 14 days before trial | — | — |
| Latest | 30 days before trial; 20 for a counteroffer | — | more than 30 days before trial | more than 20 days before trial |
| Stays open | 30 days | 14 days | 30 / 60 / 15 days by branch | 90 days or until 10 days before trial |
| Defendant's threshold | judgment of no liability, or under 75% | judgment not more favorable | — | recovery 80% or less of the offer |
| Plaintiff's threshold | over 125% | none | — | recovery 120% or more |
| Sanction | fees and expenses from rejection | post-offer costs | 20% of the difference | fees, interest and expenses |
| Must be served by | certified mail or statutory overnight delivery | — | — | — |
A short checklist
- Check that the case is a tort claim. The statute does not reach contract actions.
- Do not serve before day 31, and do not serve inside 30 days of trial — 20 for a counteroffer.
- Say on the face of the offer that it is made under O.C.G.A. § 9-11-68. An ordinary demand letter does not trigger the statute.
- Work through all eight content requirements, including the punitive-damages figure and whether fees are included.
- Serve by certified mail or statutory overnight delivery with a certificate of service.
- Do not file it with the court.
- Leave it open the full 30 days. Withdrawing sooner forfeits the fee claim unless it was already rejected.
- Treat any counteroffer as a rejection — and decide deliberately whether to denominate your own counteroffer under the statute, because doing so puts you on the hook for the other threshold.
- Offer early. Fees run from the date of rejection, so the same offer is worth more the sooner it is made.
Where these rules live
- O.C.G.A. § 9-11-68 — Offers of settlement; damages for frivolous claims or defenses
- O.C.G.A. § 9-11-5 — Service and filing of pleadings subsequent to the original complaint and other papers
- O.C.G.A. § 9-11-56 — Summary judgment
- O.C.G.A. § 9-15-14 — Litigation costs and attorney's fees assessed for frivolous actions and defenses
This page explains what the statute says. It isn't legal advice, and the reasonableness of a fee award under § 9-11-68 is developed in case law this site doesn't cover.