Offers of Judgment

The Mississippi Rules of Civil Procedure permit a defendant to make an offer of judgment to the plaintiff prior to trial.

An offer of judgment is simply an agreement of the defendant to give the plaintiff a judgment in a certain amount.

In Mississippi state courts, Rule 68 of the Mississippi Rules of Civil Procedure applies to these offers.

The procedure is simple and must be done at least 15 days prior to trial. The defendant sends the plaintiff a written offer. The offer says the defendant will allow a judgment to be taken for a certain amount.

The plaintiff has 10 days to send back a written notice accepting the offer. If the offer is accepted, the court is notified and enters a judgment.

If the plaintiff does not accept the offer within 10 days, it is deemed withdrawn. In addition, the plaintiff cannot introduce the offer of judgment at trial.

Assume the plaintiff rejects the offer and then recovers a judgment for less than was offered. In that case, the plaintiff must pay the costs the defendant incurred after the date of making the offer.

As stated, Rule 68 applies to “costs” incurred by the defendant from and after the date the offer was made.

At first that sounds significant. But, the term “costs” has such a narrow meaning in Mississippi that Rule 68 really has no teeth in most cases.

Specifically, in the vast majority of cases in Mississippi, the term “costs” only includes a narrow range of litigation expenses. These include filing fees, process fees, non-expert witness fees, and the like. It does not include a wide range of expenses and, more importantly, it does not include attorney’s fees.

There are a few Mississippi statutes that would allow an award of attorney’s fees and expert witness fees in this situation, but they are rare cases. See, e.g. , Hubbard v. Delta Sanitation of Mississippi , 64 So.3d 547, 564 (Miss. Ct. App. 2011).

But, in most cases, the small amount of costs recoverable under Rule 54 are the same type of costs recoverable under Rule 68.

This is an interesting twist to Rule 68. Under the Rule, the plaintiff only has to pay costs if the plaintiff obtains a judgment for less than the amount offered by the defendant.

If there is a defense verdict, then the plaintiff did not obtain a judgment. So, the plaintiff would not have to pay costs.

Note: An offer of judgment can also be made by counter-defendant to a counter-plaintiff.

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Craig Painter

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