Often overlooked in federal practice, state “offer of settlement” statutes potentially present both plaintiffs and defendants with an opportunity to recover costs and attorney fees. Under certain circumstances, Rule 68 of the Federal Rules of Civil Procedure allows defendants in federal court to recover costs, although generally not attorney fees, incurred after they make an offer of judgment to plaintiffs.
Several states have offer-of-settlement statutes that contain broader provisions than Rule 68—that, for example, allow plaintiffs to make offers of settlement or specifically provide for the award of attorney fees to either party.
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