At any time more than ten days before the trial begins, any party may serve upon an adverse party an offer to allow judgment to be taken against the party for money or property or to the effect specified in the offer, with costs then accrued. If, within ten days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. If the liability of one party to another has been determined by verdict or 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 shall have the same effect as an offer made before trial if it is served within a reasonable time not less than ten days prior to the commencement of hearings to determine the amount or extent of liability.
Rule 68.Offer of Judgment
Part VIII: Provisional and Final Remedies and Special Proceedings · Last amended 2006 · Last verified July 16, 2026
In one sentenceRule 15-6-68 lets a party serve an offer of judgment before trial, and if the other side rejects it and later recovers no more than the offer, that party must pay the costs that accrued after the offer was made.
Full Text of Rule 15-6-68
Plain-English Summary
Rule 15-6-68 gives parties a way to test settlement value with real consequences attached. More than ten days before trial begins, any party can serve an adverse party with an offer to let judgment be entered against them for money, property, or on other specified terms, plus the costs accrued up to that point. If the adverse party accepts in writing within ten days, either side can file the offer, the acceptance, and proof of service, and the clerk enters judgment on it directly, without further proceedings.
Turning the offer down carries a cost-shifting risk. An offer that is not accepted is deemed withdrawn, and it cannot be used as evidence later except in a proceeding to determine costs. But if the offeree goes on to obtain a judgment that is not more favorable than the offer was, the offeree has to pay the costs incurred after the offer was made — a real incentive to take a reasonable offer seriously rather than gamble on trial. Rejecting one offer does not stop a party from making another one later.
The rule also works after liability has already been decided. If a verdict, order, or judgment has established that one party is liable to another but the amount or extent of that liability still needs to be worked out, the liable party can make an offer of judgment on the same terms, as long as it is served within a reasonable time and at least ten days before the hearings on the amount or extent of liability begin.
Frequently Asked Questions
How long before trial must an offer of judgment be served in South Dakota?
Rule 15-6-68 requires it to be served more than ten days before trial begins.
What happens if I turn down a South Dakota offer of judgment and then recover less at trial?
Rule 15-6-68 requires you, as the offeree, to pay the costs incurred after the offer was made if the judgment you finally obtain is not more favorable than the offer.
Can an unaccepted South Dakota offer of judgment be used as evidence at trial?
No. Rule 15-6-68 states that an offer not accepted is deemed withdrawn, and evidence of it is not admissible except in a proceeding to determine costs.
Does making one offer of judgment stop a South Dakota party from making a later offer?
No. Rule 15-6-68 states that the fact an offer is made but not accepted does not preclude a subsequent offer.
Can a party make an offer of judgment after liability has been decided but before damages are set?
Yes. Rule 15-6-68 allows the party found liable to make an offer of judgment with the same effect, if it is served within a reasonable time and at least ten days before the hearings on the amount or extent of liability begin.
Amendment History
—SDC 1939 & Supp 1960, §§ 33.1809, 33.1810; SD RCP, Rule 68, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; as amended by SL 2006, ch 273 (Supreme Court Rule 05-12), effective November 2, 2005.
Source & verification. Rule text and History are
reproduced verbatim from the South Dakota Codified Laws, published by the
South Dakota Legislative Research Council. Last verified July 16, 2026.
· Official source
Also known as: south dakota offer of judgment ruleoffer of judgment cost shifting south dakotarejecting an offer of judgment consequencesoffer of judgment after liability determined