Foreward: Of Offers Not (Frequently) Made and (Rarely) Accepted: The Mystery of Federal Rule 68

This Symposium brings together, from around the nation, eight civil rights and employment discrimination lawyers, four legal academics, and an eminent federal judge, all with deep experience and interest in the promise and pitfalls of Federal Rule of Civil Procedure 68. We gather to unravel a mystery. In an oversimplified nutshell, Rule 68, as construed, enables the defendants to say to the plaintiffs in employment discrimination and civil rights cases: "If you don't beat my offer at trial, you forfeit your right to any future statutory attorney fees." Rule 68 would, therefore, appear to give the defendants a significant incentive to make offers and to give the plaintiffs a significant incentive to accept them. Yet, the rule is seldom used.

The mystery is why? Before turning to that question, some background information may be in order.