I got sued and my lawyer cross sued for six causes of action.
We then received a 998 offer for an amount plus "fees associated only with three aforementioned causes of action."
my attorney says that we should reject it because it would be impossible for the judge to determine what amount of his fees are recoverable and attributable to the three causes of action and therefore we don't know what the true amount of the offer is?
I think that its vague. How can one determine what the fees for a few of the causes of action are?
Does a rejection based on fees for only some of the causes of action make sense?
Is the offer a true 998, or is the other side just playing games?
I agree with you. This is not a true 998 offer.
The party sending the Section 998 offer need serve on the opposing party an offer in writing to allow judgment to be taken in a specific sum or award to be entered in accordance with stated terms and conditions. (Saba v. Crater (1998) 62 Cal.App.4th 150, 153.)
Nominal or token Section 998 offers made without a reasonable expectation of acceptance do not trigger recovery of expert witness fees under the statute. The reasonableness of a 998 offer is measured by determining whether the offer represents a reasonable prediction of the result of the trial, assuming plaintiff prevailed, discounted by an appropriate factor given that no liability was actually found at trial.
Whether an offer pursuant to Section 998 was made in good faith is a matter for the trial court's discretion, considering the circumstances of the particular case at the time the offer was made. The trial court considers, among other factors, the amount of the offer, the defendant's apparent liability, the plaintiff's damages, the defendant's insurance, the information available to plaintiff, and the amount of the ultimate verdict.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.
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