A Louisiana offer of judgment is a written pretrial settlement proposal served under Article 970 of the Code of Civil Procedure that, if rejected, can force the rejecting party to pay the other side’s post-offer litigation costs when the final judgment misses the offer by at least 25%.1Justia Law. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment Either side in a civil case can use it, and the mechanics, deadlines, and consequences are specific enough that getting any of them wrong can waste the tool entirely.
Who Can Make an Offer and When
Any party in a civil case can serve an offer of judgment on the opposing side, whether plaintiff or defendant. The offer can be made at any point after the parties have had a fair chance to conduct discovery, and it must be served no later than 20 days before the scheduled trial date.1Justia Law. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment The discovery requirement matters because a court could reject a premature offer if the opposing party has not had time to evaluate the claims.
If liability has already been decided and only damages remain to be tried, either side can still serve an offer of judgment on the damages portion. In that situation the offer must be served at least 30 days before the damages hearing begins rather than 20 days.1Justia Law. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment
What the Offer Must Say
The offer must be in writing. It has to state explicitly that it is made under Article 970, specify the total dollar amount being offered, and clarify whether that amount includes or excludes costs, interest, and attorney fees.2Louisiana State Legislature. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment The inclusion-or-exclusion detail is easy to overlook, and leaving it unclear creates ambiguity that can undermine the offer when the court later compares it to the final judgment.
Accepting, Rejecting, and Confidentiality
Once the offer is served, the opposing party has 10 days to accept it by serving written notice of acceptance. If accepted, either side can ask the court to enter judgment on the agreed terms, and the court is required to grant it.2Louisiana State Legislature. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment A party who consented to the judgment cannot appeal it. If the 10-day window passes without acceptance, the offer is automatically deemed withdrawn.
A rejected offer does not end the process. Article 970 explicitly allows either party to make additional offers or counter-offers after an earlier offer goes unaccepted.2Louisiana State Legislature. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment
Unless accepted, the offer stays confidential between the two sides. It cannot be introduced as evidence at trial. The one narrow exception is that either party can reference it in a post-trial proceeding to determine cost-shifting under Article 970.1Justia Law. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment The confidentiality rule exists so the jury never learns what one side was willing to settle for.
The 25% Cost-Shifting Trigger
The penalty does not apply every time someone rejects an offer and gets a worse result at trial. Louisiana requires a significant gap between the offer and the final judgment, and the rules differ depending on which side made the offer:
- When a defendant makes the offer and the plaintiff rejects it, the plaintiff must pay the defendant’s post-offer costs only if the final judgment is at least 25% less than the defendant’s offer, or if the defendant wins outright.
- When a plaintiff makes the offer and the defendant rejects it, the defendant must pay the plaintiff’s post-offer costs only if the final judgment exceeds the plaintiff’s offer by at least 25%.
These thresholds are set out in Paragraph C of Article 970.2Louisiana State Legislature. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment A quick example: a defendant offers $100,000 and the plaintiff rejects. If the plaintiff ultimately recovers $80,000 at trial, that is only 20% less than the offer, so the penalty does not apply. If the plaintiff recovers $74,000 or less, the 25% threshold is met and the plaintiff owes the defendant’s post-offer costs.
One boundary worth stating clearly: the recoverable costs are “exclusive of attorney fees.” Article 970 does not allow the winning offeror to recover attorney fees through this mechanism, no matter what any other Louisiana fee-shifting statute says.1Justia Law. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment
How the Court Compares the Offer to the Judgment
When a court evaluates whether the 25% threshold has been met, the final judgment amount used for comparison does not include costs, interest, attorney fees, or any other amounts awarded by statute or rule, unless the offer itself expressly included those categories.2Louisiana State Legislature. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment If the trial court increases or decreases the jury’s verdict through additur or remittitur, the adjusted amount is what counts. That is why the offer’s drafting choice about inclusion or exclusion controls the apples-to-apples comparison the court will later run.
What Costs You Could End Up Paying
Article 970 does not define “costs” on its own. In an offer-of-judgment proceeding the costs typically at stake include filing fees, service of process fees, deposition transcript charges, and expert witness fees.
Expert witness fees deserve the most attention. Louisiana law allows courts to tax expert fees as costs against the losing party, with the amount based on the expert’s time and the level of skill involved. In complex cases involving medical experts, accident reconstructionists, or economists, the post-offer expert costs alone can reach tens of thousands of dollars. The court also has discretion to tax the reasonable cost of medical reports and copies of hospital records.3Justia Law. Louisiana Revised Statutes 13-3666 – Compensation of Expert Witnesses Those numbers give the Article 970 penalty real financial weight even without attorney fee-shifting.
Only costs incurred after the offer was served are recoverable. Costs the offeror had already spent before serving the offer stay with the offeror.
How Louisiana’s Procedure Differs from Federal Rule 68
If your prior experience is with federal court, do not assume Article 970 operates the same way as Federal Rule 68. Three differences matter.
First, who can make the offer. Under Federal Rule 68, only the party defending against a claim can serve an offer of judgment.4LII / Legal Information Institute. Federal Rules of Civil Procedure Rule 68 – Offer of Judgment Article 970 lets any party make the offer, including the plaintiff.1Justia Law. Louisiana Code of Civil Procedure Art. 970 – Motion for Judgment on Offer of Judgment
Second, the trigger. Federal Rule 68 applies whenever the final judgment is “not more favorable” than the unaccepted offer, so any shortfall at all triggers the penalty.4LII / Legal Information Institute. Federal Rules of Civil Procedure Rule 68 – Offer of Judgment Louisiana requires the 25% gap.
Third, attorney fees. Federal Rule 68 refers only to “costs,” and the U.S. Supreme Court held in Marek v. Chesny that when a federal statute defines costs to include attorney fees, those fees are recoverable under Rule 68.5Justia US Supreme Court. Marek v. Chesny, 473 U.S. 1 (1985) Article 970 explicitly excludes attorney fees regardless of what any other statute says about fee-shifting. For parties litigating fee-shifting claims in Louisiana state court, that distinction can mean the difference between a moderate cost penalty and a financially severe one.