28 APPENDIX U.S.C. § 68
NOTES OF ADVISORY COMMITTEE ON RULES-1937 See 2 Minn. Stat. (Mason, 1927) §9323; 4 Mont. Rev. Codes Ann. (1935) §9770; N.Y.C.P.A. (1937) §177.For the recovery of costs against the United States, see Rule 54(d).
NOTES OF ADVISORY COMMITTEE ON RULES-1946 AMENDMENTThe third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible. The two sentences substituted for the deleted last sentence of the rule assure a party the right to make a second offer where the situation permits-as, for example, where a prior offer was not accepted but the plaintiff's judgment is nullified and a new trial ordered, whereupon the defendant desires to make a second offer. It is implicit, however, that as long as the case continues-whether there be a first, second or third trial-and the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered. In the case of successive offers not accepted, the offeror is saved the costs incurred after the making of the offer which was equal to or greater than the judgment ultimately obtained. These provisions should serve to encourage settlements and avoid protracted litigation.The phrase "before the trial begins", in the first sentence of the rule, has been construed in Cover v. Chicago Eye Shield Co. (C.C.A.7th, 1943) 136 F.(2d) 374, cert. den. (1943) 320 U.S. 749.
NOTES OF ADVISORY COMMITTEE ON RULES-1966 AMENDMENTThis logical extension of the concept of offer of judgment is suggested by the common admiralty practice of determining liability before the amount of liability is determined.
NOTES OF ADVISORY COMMITTEE ON RULES-1987 AMENDMENTThe amendments are technical. No substantive change is intended.
COMMITTEE NOTES ON RULES-2007 AMENDMENT The language of Rule 68 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
COMMITTEE NOTES ON RULES-2009 AMENDMENT Former Rule 68 allowed service of an offer of judgment more than 10 days before the trial begins, or-if liability has been determined-at least 10 days before a hearing to determine the extent of liability. It may be difficult to know in advance when trial will begin or when a hearing will be held. The time is now measured from the date set for trial or hearing; resetting the date establishes a new time for serving the offer.The former 10-day periods are extended to 14 days to reflect the change in the Rule 6(a) method for computing periods less than 11 days.