The Nevada offer of judgment: 21 days before trial, 14 days to accept, and attorney's fees on the line

Federal Rule 68 is a one-way street: only a defending party may offer, and the sanction is costs. Nevada's rule is neither. Any party may serve an offer, and the penalty for rejecting one and doing no better includes the offeror's post-offer expert expenses, interest, and attorney's fees where fees are otherwise available.

The rule was restyled in 2019 and rewritten around three ideas worth understanding before you serve or receive one: what the offer is presumed to include, how joint offers to more than one party work, and exactly how the comparison at the end is done.

The offer, and what it covers by default

NRCP 68(a):

At any time more than 21 days before trial, any party may serve an offer in writing to allow judgment to be taken in accordance with its terms and conditions. Unless otherwise specified, an offer made under this rule is an offer to resolve all claims in the action between the parties to the date of the offer, including costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees.

Two defaults hide in that second sentence. Silence means the offer resolves all claims between those parties, and silence means the number is inclusive of costs, expenses, interest and fees. An offeror who means to offer a principal sum with costs to be added later has to say so — and, as the comparison rule below shows, that choice changes the arithmetic at the end of the case.

Offers to more than one party

Nevada spends three subsections on multi-party offers because they are where the rule most often fails.

NRCP 68(b) allows the conditional form: "An apportioned offer of judgment to more than one party may be conditioned upon the acceptance by all parties to whom the offer is directed."

NRCP 68(c) governs joint unapportioned offers, and sets real limits:

(2) Offers to Multiple Defendants. An offer made to multiple defendants will invoke the penalties of this rule only if: (A) there is a single common theory of liability against all the offeree defendants, such as where the liability of some is entirely derivative of the others or where the liability of all is derivative of common acts by another; and (B) the same entity, person, or group is authorized to decide whether to settle the claims against the offerees.

(3) Offers to Multiple Plaintiffs. An offer made to multiple plaintiffs will invoke the penalties of this rule only if: (A) the damages claimed by all the offeree plaintiffs are solely derivative ... and (B) the same entity, person, or group is authorized to decide whether to settle the claims of the offerees.

Both tests have the same shape: a single common theory (or solely derivative damages) and a single decision-maker. A lump-sum offer to two defendants with independent theories of liability is not void — it simply does not trigger the penalties, which is usually the whole point of making it.

Fourteen days to accept, then 21 more

NRCP 68(d) runs a two-stage clock:

(1) Within 14 days after service of the offer, the offeree may accept the offer by serving written notice that the offer is accepted.

(2) Within 21 days after service of written notice that the offer is accepted, the obligated party may pay the amount of the offer and obtain dismissal of the claims, rather than entry of a judgment.

(3) If the claims are not dismissed, at any time after 21 days after service of written notice that the offer is accepted, either party may file the offer and notice of acceptance together with proof of service. The clerk must then enter judgment accordingly. The court must allow costs in accordance with NRS 18.110 unless the terms of the offer preclude a separate award of costs. Any judgment entered under this section must be expressly designated a compromise settlement.

Subdivision (2) is the feature federal practice lacks: an accepted offer does not have to become a public judgment. Pay within 21 days and the claims are dismissed instead. A defendant that cares about a judgment appearing on its record should plan for that window.

Rejection

NRCP 68(e):

If the offer is not accepted within 14 days after service, it will be considered rejected by the offeree and deemed withdrawn by the offeror. Evidence of the offer is not admissible except in a proceeding to determine costs, expenses, and fees. The fact that an offer is made but not accepted does not preclude a subsequent offer. With offers to multiple offerees, each offeree may serve a separate acceptance of the apportioned offer, but if the offer is not accepted by all offerees, the action will proceed as to all. Any offeree who fails to accept the offer may be subject to the penalties of this rule.

Rejection is automatic on day 15 — no written rejection is needed, and none is required to preserve the penalties.

The penalties

NRCP 68(f)(1) is the reason the rule matters:

If the offeree rejects an offer and fails to obtain a more favorable judgment: (A) the offeree cannot recover any costs, expenses, or attorney fees and may not recover interest for the period after the service of the offer and before the judgment; and (B) the offeree must pay the offeror's post-offer costs and expenses, including a reasonable sum to cover any expenses incurred by the offeror for each expert witness whose services were reasonably necessary to prepare for and conduct the trial of the case, applicable interest on the judgment from the time of the offer to the time of entry of the judgment and reasonable attorney fees, if any be allowed, actually incurred by the offeror from the time of the offer.

Both halves bite. The offeree loses its own post-offer costs, expenses, fees and interest and pays the offeror's — including expert witness expenses, which in an injury or construction case are frequently the largest single number in the award.

Two qualifications. Attorney's fees are shifted "if any be allowed" — the rule does not create a fee entitlement where none otherwise exists; it shifts one that does. And there is a contingency-fee adjustment: "If the offeror's attorney is collecting a contingent fee, the amount of any attorney fees awarded to the party for whom the offer is made must be deducted from that contingent fee."

Where several offers were made, NRCP 68(f)(2) fixes the start date: "The penalties in this rule run from the date of service of the earliest rejected offer for which the offeree failed to obtain a more favorable judgment." Serving an early, modest offer is therefore not wasted effort — it sets the clock even if a later offer is the one that turns out to be beaten.

How the comparison is actually made

NRCP 68(g) is the subsection people skip and then argue about:

To invoke the penalties of this rule, the court must determine if the offeree failed to obtain a more favorable judgment. If the offer provided that costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees, would be added by the court, the court must compare the amount of the offer with the principal amount of the judgment, without inclusion of costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees. If a party made an offer in a set amount that precluded a separate award of costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees, the court must compare the amount of the offer, together with the offeree's pre-offer taxable costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees, with the principal amount of the judgment.

Two different comparisons, and which one applies depends on how the offer was drafted. An add-costs-later offer is compared bare against the bare judgment. A set-amount offer is compared against the judgment after adding the offeree's pre-offer costs to the offer side. Draft the offer knowing which comparison you want.

Offers after liability is decided

NRCP 68(h) keeps the rule available in a bifurcated case:

When the liability of one party to another has been determined by verdict, order, or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which has the same effect as an offer made before trial if it is served within a reasonable time not less than 14 days before the commencement of hearings to determine the amount or extent of liability.

Fourteen days before the damages hearing, and only the party adjudged liable may use it.

How Nevada compares to the federal rules

The gap that matters is the second-from-top row. In federal court a rejected offer risks a costs bill. In Nevada it risks the other side's experts and, where fees are available, its lawyers.

A short checklist

• Count 21 days before trial, and serve with time to spare — the window closes, it does not extend.
• Decide whether the number includes costs and fees. Silence means it does, and that choice picks the comparison method under Rule 68(g).
• For multi-party offers, check both conditions in Rule 68(c): a single common theory, and one decision-maker.
• Diary 14 days on receipt. Doing nothing is a rejection.
• If you accept, consider paying within 21 days to get a dismissal instead of a judgment.
• Make an early offer even if it is modest. The penalties run from the earliest rejected offer that was not beaten.
• Keep your expert invoices. Post-offer expert expenses are recoverable under Rule 68(f)(1)(B).
• Do not assume fees shift. They shift only where law or contract already allows them.
• If liability is already decided, you can still offer — 14 days before the damages hearing.

Where these rules live

• NRCP 54 — Judgment; Costs
• NRCP 68 — Offer of Judgment

This page explains what the rule says; it is not legal advice. Whether attorney's fees are "permitted by law or contract" in a particular case is a separate question the rule assumes rather than answers.