Illinois Offer of Judgment: Tender Rule and Federal Rule 68

Illinois does not have a general offer of judgment rule in its state courts. Instead, a defendant who wants to create settlement pressure and shift litigation costs must make a formal tender of the amount owed, backed by actual funds. The one true offer of judgment statute in Illinois applies only to eminent domain cases. If your case is in federal court in Illinois, Federal Rule of Civil Procedure 68 governs instead, and it works quite differently from the state tender mechanism. The Illinois Supreme Court confirmed the state-court distinction in Joiner v. SVM Management, LLC, 2020 IL 124671.

How the Illinois Tender Mechanism Works in State Court

A defendant in Illinois state court does not shift costs by serving a written offer. The defendant produces money. A promise to pay is not enough; the funds have to be on the table.

The tender must cover the full amount the defendant believes the plaintiff is owed. A partial tender fails. A tender conditioned on terms the plaintiff hasn’t agreed to fails. When the tender is made after suit is filed, the Illinois Supreme Court has indicated the safest practice is to deposit the funds with the court rather than handing them to the plaintiff, which forecloses later arguments about whether the tender was genuine and unconditional.

If the plaintiff rejects the tender and then recovers no more than the tendered amount at trial, the court can shift post-tender costs to the plaintiff. That consequence turns on judicial discretion and the facts of the case rather than a mechanical rule. The pressure is real, but the framework is narrower and less predictable than what Rule 68 provides in federal court, and the defendant has to fund it out of pocket to trigger it.

The Eminent Domain Offer of Judgment Statute

Illinois has one true offer of judgment statute, and it is limited to condemnation proceedings. Under 735 ILCS 30/10-5-110, a defendant whose property is being taken may serve a written offer on the condemning authority stating the compensation the defendant will accept for the taking.¹

The timing is fixed. The offer can be made only between the close of discovery and 14 days before the trial on final just compensation. The condemning authority has 10 days to accept in writing. Silence or rejection means the offer is deemed withdrawn, and it cannot be introduced as evidence at trial.¹

A property owner who does not make an offer under this statute forfeits the right to recover attorney’s fees and other reimbursement that would otherwise be available. For that reason, serving the offer is close to mandatory strategy for property owners in condemnation cases. Skipping it leaves fee recovery on the table.¹

Federal Rule 68 in Illinois Federal Courts

When a case sits in federal court in Illinois, Rule 68 applies regardless of whether the underlying claims are state or federal. This is the mechanism most litigants have in mind when they use the phrase “offer of judgment.”

Any party defending against a claim may serve a written offer allowing judgment on specified terms at least 14 days before the trial date. The opposing party then has 14 days to accept in writing. If accepted, either side may file the offer and acceptance with the clerk, who enters judgment on those terms.²

An unaccepted offer is considered withdrawn, but the cost clock is now running. If the offeree ultimately obtains a judgment no more favorable than the rejected offer, the offeree must pay the offeror’s costs incurred after the offer date.² The unaccepted offer is not admissible at trial except in proceedings to determine costs, so a plaintiff cannot tell the jury that the defendant already offered a certain amount.

One limit worth flagging: Rule 68 permits only a “party defending against a claim” to make an offer. That means defendants and counterdefendants. A plaintiff cannot use Rule 68 to pressure a defendant into settling.

What “Costs” Actually Means

“Costs” in this context is narrower than most litigants expect. It covers court filing fees, witness fees, deposition transcript charges, and similar taxable litigation expenses. It does not automatically include the full bill for attorneys and experts.

The U.S. Supreme Court addressed the scope in Marek v. Chesny. “Costs” under Rule 68 means all costs properly awardable under the substantive statute governing the claim. If that statute defines costs to include attorney’s fees, then fees become part of the cost-shifting calculation. If it treats fees separately, they stay out.³

The stakes are highest in fee-shifting cases. In a federal civil rights action under 42 U.S.C. § 1983, attorney’s fees are expressly included as costs under § 1988. A plaintiff who rejects a Rule 68 offer and then fails to beat it at trial can recover attorney’s fees only up to the offer date. Everything after that is forfeited. In Marek, the forfeited post-offer fees came to more than $139,000, dwarfing the underlying damages.³ In an ordinary contract dispute with no fee-shifting statute, the cost exposure from a rejected offer stays limited to taxable costs.

Can a Defendant Recover Its Own Fees

Federal circuits split on whether a defendant can affirmatively recover post-offer attorney’s fees from a plaintiff who failed to beat the offer. The majority (the First, Third, Fifth, Sixth, Seventh, Eighth, and Ninth Circuits) hold that a plaintiff who obtained some recovery remains the “prevailing party,” so the defendant cannot claim its own attorney’s fees even when the plaintiff did worse than the offer. The Eleventh Circuit goes the other way.

For Illinois federal cases, the Seventh Circuit rule controls: a plaintiff who wins on liability but falls short of the offer amount is still the prevailing party and does not owe the defendant’s fees. That trims Rule 68’s leverage in fee-shifting cases filed here.

Drafting the Offer or Tender

Ambiguity in an offer gets construed against the party who wrote it. Defendants who leave key terms fuzzy can end up worse off than if they had made no offer at all.

Costs and fees are where drafting most often fails. An offer that says nothing about whether it includes costs creates the exact ambiguity courts punish. If the plaintiff accepts, the defendant might argue the lump sum swallowed costs. If the plaintiff rejects, the defendant might argue costs were separate, making the offer look larger for comparison purposes. Courts have rejected that “heads I win, tails you lose” approach and resolve the ambiguity against the offeror.

A workable offer states:

A specific dollar amount, not a range or formula.
Whether costs are included or excluded. Silence is treated as ambiguity.
Whether attorney’s fees are included or excluded, which matters most in fee-shifting cases.
The scope of claims covered, whether all pending claims or specific counts.

Generic language like “all claims for relief” is not specific enough to sweep in attorney’s fees and costs, even if the plaintiff pleaded them in the complaint. Courts have held that if the offer was meant to include fees and costs, it had to say so.

Timing and Evaluation

Timing often matters more than the amount. Move too early and the other side can credibly argue it lacked the information needed to evaluate the offer, weakening the cost-shifting effect. Move too late and the offer is useless.

Rule 68 sets the outer boundary at 14 days before trial, but the strategic reason to go earlier is simple: the earlier the offer, the wider the window of post-offer costs that can shift.² An offer served 14 days before trial captures only the costs of the trial itself.

Illinois’s state-court tender has no fixed deadline, which gives defendants more timing flexibility. The tradeoff is that a tender requires actual funds, whereas a Rule 68 offer costs nothing to serve.

For a plaintiff evaluating an offer, the useful question is not whether the number feels fair. It is whether the offer falls within the realistic range of trial outcomes once potential post-offer cost liability is priced in. In a fee-shifting case, that calculation has to include the attorney’s fees that would be forfeited under Marek if the plaintiff rejects and then fails to beat the offer.³

State Tender Versus Federal Rule 68 at a Glance

Because the choice of court determines the tool, the differences drive strategy.

Availability. Rule 68 applies only in federal court. Illinois state courts use tender for general civil cases and reserve a true offer of judgment statute for eminent domain.
Who can make it. Rule 68 is limited to a party defending against a claim. The Illinois tender is likewise defendant-driven because it requires producing funds.²
What has to be produced. A Rule 68 offer is a written document; no money moves unless it is accepted. An Illinois tender requires the defendant to actually produce the funds, typically by depositing them with the court.
Deadline. Rule 68 requires service at least 14 days before trial. The Illinois tender has no fixed deadline. The eminent domain statute requires the offer between the close of discovery and 14 days before trial.¹
Admissibility. Under Rule 68 and the Illinois eminent domain statute, an unaccepted offer is not admissible at trial.
Cost-shifting scope. Rule 68 shifts “costs” as defined by the underlying statute, which can include attorney’s fees in fee-shifting cases. The Illinois tender shifts post-tender costs, with scope resting on judicial discretion.

A litigant who assumes Illinois state courts run on Rule 68 logic will misread the position. The tender mechanism creates settlement pressure but demands more from the defendant and provides less certainty on the back end. For parties with a real forum choice, Rule 68’s defined framework can be a meaningful factor in where to file.

1
FindLaw. Illinois Code 735 ILCS 30/10-5-110
2
Legal Information Institute. Federal Rules of Civil Procedure Rule 68 – Offer of Judgment
3
Justia. Marek v. Chesny, 473 U.S. 1 (1985)