The defendant in such a case should make a settlement offer for just more than 4/3 times the likely judgment, let’s say $13,500.9 If the plaintiff accepts the offer, the case is over. Imagine a case in which a plaintiff has a strong case for receiving $10,000, but is stretching to claim an additional $90,000. Off-setting Damages with Attorneys’ Fees: The Over-reaching Plaintiff - If a plaintiff insists on more damages than he or she is likely to recover, a statutory offer of settlement from the defendant will often be advisable.The nonprevailing plaintiff in such a case has no defense to entitlement for attorneys’ fees, although the plaintiff can argue that the fees awarded should be reduced in amount based on the statutory factors.8
The legislature has made the relevant public policy determination, concluding that the efficacy of the offer of judgment statute in shortening litigation and encouraging settlements outweighs the harm from unfair or unpalatable results in particular situations.
An entitlement to a fee award can occur even if the offer rejected by the plaintiff was insultingly low or would not have provided significant compensation. A defendant, for example, may recover crushing attorneys’ fees under the statute even if the defendant’s success resulted from the death of an essential witness, an intervening change in the law, or the jury’s resolution of close and difficult factual disputes. §769.79 in this type of case may lead to harsh results. Florida law provides that even nominal offers made solely to trigger a potential recovery of attorneys’ fees are valid for that purpose so long as the defendant would have complied with the offer if accepted and there was a “reasonable foundation” for it.6 The “reasonable foundation” for any offer made by a defendant who in fact prevailed is not difficult to demonstrate as the 11th Circuit held in one case, “to accept in the same case in which a party did prevail the notion that there was no reasonable basis for that party prevailing would require self-contradiction on a scale that we are unwilling to consider.”7 The take home message is that a defendant has much to gain, and nothing to lose, by making a statutory offer for the purpose of creating a right to recovery of fees should a defendant be so fortunate as to prevail ultimately in the litigation.
Offer of judgment full#
§768.79, however, apply with full force when a defendant has prevailed entirely after a plaintiff has walked away from a settlement offer in his favor. Such strategic offers offend many judges (and plaintiffs), and have resulted in some language and holdings to the effect that such offers were not in “good faith” under the statute.5 The policy and language of F.S. Essentially the same considerations apply to an offer of settlement which is nominal or simply less than the plaintiff will accept: for instance, less than readily provable out of pocket losses. Creating Fee-shifting for Prevailing Defendants: Nominal and Similar Offers - In virtually every case in which a defendant is sued, the defendant should consider making a statutory settlement offer to the plaintiff for the purpose of generating a potential claim for fees if the defendant prevails.Florida’s statutory offer procedure thus creates coercive pressure toward settlements based on the fear of the statute’s consequences for the “unreasonable” (in hindsight) rejection of statutory settlement offers.4 The “stick” or “hammer” leading to this result is the threat that if the party receiving the offer rejects it and does not do at least 75 percent as well as offered, that party will have to pay the offeror’s attorneys’ fees and costs from the date of the offer. §768.79,1 the offer of settlement (and judgment)2 statute, and nearly 10 years since the Florida Supreme Court amended Rule 1.442 to harmonize the Rules of Civil Procedure to match the legislature’s handiwork.3 The Florida statutory settlement offer procedure is a powerful weapon for either a plaintiff or a defendant to bring litigation to a speedy settlement in the right circumstances. It has been 15 years since the Florida Legislature passed F.S.