A Rule 68 offer of judgment is one of the few settlement tools in federal court that carries a built-in penalty. Serve it on time, and a plaintiff who turns it down and then does worse at trial pays the costs that pile up after the offer. Serve it late, and the offer is not a Rule 68 offer at all — it is just an ordinary settlement proposal with none of that leverage. The deadline itself is short and easy to misread: the offer must be served at least 14 days before the date set for trial, and the other side then has 14 days to accept it.
What Rule 68 actually requires
Under Federal Rule of Civil Procedure 68(a), a party defending against a claim may serve an offer to allow judgment on specified terms, with the costs then accrued. The offer must be served at least 14 days before the date set for trial. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may file the offer and the notice of acceptance, plus proof of service, and the clerk must then enter judgment. Note who can make the offer: it is the party defending against a claim. In most cases that is the defendant, but a plaintiff defending a counterclaim can make a Rule 68 offer on that counterclaim too.
The offer has to be definite enough to become a judgment. State the sum or the exact terms, and state that costs then accrued are included. A vague invitation to talk, an oral proposal, or a letter that leaves the terms open for negotiation is not a Rule 68 offer, and courts will not give it Rule 68 effect. Put it in writing, serve it formally, and keep proof of service — the whole mechanism turns on dates, and dates need paper.
The two 14-day clocks
Rule 68 runs on two separate 14-day periods, and confusing them is the most common mistake. The first period runs backward from trial: the offer must reach the other side no later than 14 days before the trial date. The second period runs forward from service: once served, the offeree has 14 days to accept by serving written notice. Silence is not acceptance. When the 14 days expire without acceptance, the offer is considered withdrawn under Rule 68(b) — but withdrawal does not bar a later offer, so a defendant can serve a fresh, better offer if the trial date still allows it.
Counting follows Rule 6(a). The trigger day is excluded and every calendar day counts, including weekends and holidays. So for a trial set for Monday, November 30, 2026, count 14 days backward and the last day to serve the offer is Monday, November 16, 2026. If the offer is served on Monday, November 2, 2026, the offeree’s 14-day acceptance window runs to Monday, November 16, 2026. One practical warning: if the 14-days-before mark lands on a weekend or a holiday, do not wait until that day to serve. The rule gives a minimum, not a safe harbor for last-minute service, and serving a day or two early costs nothing.
Worked examples
Example 1: Trial is set for Monday, November 30, 2026. The defendant must serve the Rule 68 offer no later than Monday, November 16, 2026 — 14 days before trial. An offer served on November 17 is late, even by one day, and carries no Rule 68 cost-shifting effect.
Example 2: The defendant serves a written offer of $75,000 plus costs then accrued on Monday, November 2, 2026. The plaintiff has until Monday, November 16, 2026, to serve written notice of acceptance. If the plaintiff accepts on November 10, either side files the offer and the acceptance with proof of service, and the clerk enters judgment on those terms. If November 16 passes with no acceptance, the offer is withdrawn.
Example 3: The defendant serves an offer of $40,000 on Friday, November 6, 2026. The plaintiff does not accept, goes to trial, and wins $30,000. Because the final judgment is not more favorable than the unaccepted offer, Rule 68(d) shifts the costs incurred after November 6 to the plaintiff. Had the plaintiff won $50,000 — more favorable than the offer — the cost-shifting rule would not apply. That comparison, offer against final judgment, is the entire gamble of Rule 68.
What happens to an unaccepted offer
An unaccepted offer is withdrawn, and Rule 68(b) adds two protections. First, withdrawal does not preclude a later offer — a defendant who offered $40,000 early can offer $60,000 closer to trial, as long as the new offer still lands at least 14 days before the trial date. Second, evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. The jury never hears that the plaintiff turned down $40,000 and won $30,000; the offer surfaces only when the judge sorts out who pays what after the verdict.
The cost consequence is where Rule 68 bites. Under Rule 68(d), if the judgment the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. In Marek v. Chesny, 473 U.S. 1 (1985), the Supreme Court held that “costs” under Rule 68 includes all costs properly awardable in the action — and where an underlying fee-shifting statute defines attorney’s fees as part of costs, those fees count too. That is why a Rule 68 offer changes settlement math: rejecting it risks not just losing at trial, but paying the other side’s post-offer costs as well.
Offers after liability is decided
Rule 68(c) covers the split case: liability has been determined, but the extent of liability still has to be decided in further proceedings. There, the party held liable may make an offer of judgment, and it must be served within a reasonable time but at least 14 days before the date set for the hearing on the extent of liability. The same acceptance and cost-shifting machinery applies. One more timing point from the 2009 amendments: the 14 days are measured from the date set for trial or hearing, so if the court resets the trial date, a new service window opens measured from the new date.
Rule 68 also sits inside the wider federal deadline system. The scheduling order sets the trial date that the 14-day count runs backward from, and our federal scheduling order deadline guide explains the 90-day rule under FRCP 16(b)(2) that puts that order on the calendar. Once a case is underway, the response clock that starts it all is the federal answer deadline — 21 days under FRCP 12 — and after judgment, the federal post-judgment motion deadline gives a losing party 28 days under FRCP 59. If any of those dates slips, our federal court deadlines calculator can run the count for you.
Frequently asked questions
Who can make a Rule 68 offer of judgment?
Any party defending against a claim — usually the defendant, but also a plaintiff defending a counterclaim. The rule does not let a plaintiff make a Rule 68 offer on its own affirmative claim.
How late can a Rule 68 offer be served?
No later than 14 days before the date set for trial, counting backward under Rule 6(a) with the trial date excluded. Serving on the 13th day before trial is too late.
How long does the other side have to accept?
14 days after being served, by serving written notice of acceptance. After that window closes without acceptance, the offer is considered withdrawn.
Can a defendant make a second Rule 68 offer after the first is rejected?
Yes. Rule 68(b) says an unaccepted offer does not preclude a later offer. Each new offer must still be served at least 14 days before the date set for trial.
What if the plaintiff wins less than the offer at trial?
Under Rule 68(d), the plaintiff must pay the costs incurred after the offer was made, because the final judgment was not more favorable than the unaccepted offer. Under Marek v. Chesny, those costs can include attorney’s fees where the governing statute treats fees as costs.
Does the jury hear about a rejected Rule 68 offer?
No. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs, so the offer only surfaces after the verdict, when the judge allocates costs.
This article is general information only and is not legal advice. Rule 68 deadlines interact with scheduling orders, local rules, and the specific statute governing costs in your case — confirm the dates with the court and with counsel before relying on them.