Cannabis Litigation: What is an Offer of Judgment?

Like all commercial litigation, cannabis business litigation is expensive and in most circumstances a party cannot recover its attorneys’ fees. The exception is where recovery is authorized by a contract or a statute. This post discusses how a party in commercial litigation—whether involving cannabis or not—can use an Offer of Judgment to leverage a more favorable settlement and potentially recover its attorneys’ fees.

The federal rules of civil procedure and most, if not all, state court procedural rules provide that party may make an Offer of Judgment. This post uses the federal rules of civil procedure as an example. The relevant rule is Fed. R. Civ. P. 68 and you can read more about offers of judgment here. (Disclaimer: State rules may not work the same as the federal rule).

Understanding what an Offer of Judgment is and how it works first requires understanding what a “judgment” is. A judgment is the court decision that settles the dispute between the parties. A judgment may occur (among other ways) as result of a motion to dismiss, or a motion of summary judgment, or after a bench or jury trial. In a case for money damages, the judgment will represent the decision

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