Rule 68.Settlement offers

Rule 68 gives litigants a structured incentive to settle. A Rule 68 offer resolves every claim in the case as of the date of the offer — including costs, interest, and attorney fees, if fees are otherwise recoverable — unless the offer says otherwise. The consequence for turning one down and doing worse at trial is real: if the "adjusted award" ultimately isn't more favorable than the rejected offer, the offeror stops being on the hook for the offeree's costs, prejudgment interest, and fees incurred after the offer, and the offeree instead has to pay the offeror's post-offer costs. The court retains discretion to suspend that cost-shift where it would produce manifest injustice.

To trigger these consequences, an offer has to follow a specific format: it must be in writing, expressly invoke Rule 68, be made more than 14 days before trial, stay open for at least 14 days, and be served on the offeree under Rule 5. Acceptance likewise has to be in writing and served under Rule 5, after which either party can file the offer and acceptance along with a proposed judgment under Rule 58A. The "adjusted award" that gets compared against the offer isn't just the jury or judge's verdict — it also folds in the offeree's costs and interest incurred before the offer, and, where fees are recoverable and not excluded by the offer, the offeree's reasonable pre-offer attorney fees (with the court setting a reasonable fee if the offeree was on a contingency arrangement). Litigants in personal injury or wrongful death cases should also keep the interaction with Utah's prejudgment interest statute in mind: under Section 78B-5-824, a party can lose prejudgment interest on special damages in certain cases if it never makes a settlement offer, offers too close to trial, or offers at least one-and-a-third times the eventual judgment.