Rule 68.Pleading, Allowance, and Taxation of Attorney Fees and Costs and Disbursements

Rule 68 separates two kinds of recovery. “Attorney fees” means the reasonable value of legal work on the case. “Costs and disbursements” means the other reasonable, necessary out-of-pocket expenses of litigating it — officer and witness fees, the cost of publishing or mailing a summons, a Department of Transportation address-lookup fee, referee compensation, copying costs for exhibits admitted at trial, the cost of recording documents needed to give notice of an interest in real property, reasonable bond-related fees, and anything else a rule, statute, or agreement allows, plus interpreter expenses the court chooses to allow. Deposition costs are the notable exception: they are not recoverable even when the deposition gets used at trial, unless some other rule or statute says otherwise. Section B sets the default: the prevailing party gets its costs and disbursements unless a rule or statute says otherwise or the court directs otherwise, and any special right to costs carries a right to disbursements along with it.

Section C governs the pleading, proof, and award of attorney fees in nearly every case, whatever the source of the right to recover them, with three exceptions: fees claimed as damages that arose before the case began, fees awarded by order rather than as part of a judgment, and cases where the statute authorizing fees points to Rule 68 but spells out its own different procedure. Outside those exceptions, a party seeking fees has to allege, in a pleading, the facts, statute, or rule the claim rests on, and can do this before the right to recover even matures; if the party is proceeding by motion rather than pleading, the same allegation belongs in the motion or the response to one. No pleading needs to name a dollar figure — an allegation of entitlement to “reasonable attorney fees” is enough. The allegation is automatically treated as denied, so no response is required, though the other side can move to strike it or ask that it be made more definite, and loses the right to object to its form if that objection is not raised before trial or hearing.

Rather than proving fees and costs at trial, the prevailing party proves them afterward, on paper. Not later than 14 days after entry of judgment, the party seeking fees or costs must file and serve a signed, detailed statement that walks through the factors ORS 20.075 or any other applicable statute or rule requires or permits the court to weigh. Any party who disagrees has 14 days after being served with that statement to file and serve a written, specific objection, which is automatically treated as controverted and can be backed with affidavits or declarations. The party seeking fees then has 7 days after service of the objection to file a response, also backed by affidavits or declarations if needed. The court can extend any of these deadlines in its discretion, on whatever terms are just, and by default decides the dispute on the papers alone — no hearing unless a party asks for one in the caption of its objection or response, or the court sets one on its own. Skip the objection window and the court can award whatever the statement asked for. Either side can also ask, again in the caption of its filing, for special findings of fact and conclusions of law on the record.

How the award reaches the judgment depends on timing. If every fee and cost issue is resolved before judgment, the award goes into that judgment directly. If not, it follows later by supplemental judgment, or, after a limited judgment, by a further limited judgment once the court finds no just reason for delay. Because a single case can produce more than one judgment, section (6) requires the court to prevent the same fees or costs from being taxed twice, and provides that satisfying one judgment bars collecting the same fees or costs included in any other judgment for the same claim. And because collecting on a judgment can itself take work, section (7) lets a party who already alleged a basis for fees go back later and seek the fees and costs of collecting or enforcing that judgment, through a supplemental statement that follows the same statement-objection-response steps — limited, absent good cause, to one supplemental statement in the judgment’s first year and one per year after that.