An often underutilized strategic tool is the offer of judgment, which is available in many jurisdictions. An offer of judgment can be very helpful in facilitating a settlement by giving a plaintiff a reason to reconsider a settlement offer, and it can also be used to recoup litigation costs.
Essentially, with proper notice, prior to trial, a party defending against a claim may serve upon the plaintiff an offer to allow judgment to be taken against the defending party, usually for a set monetary amount. If, within a certain number of days after the service of the offer of judgment, the plaintiff serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance with the court and the Clerk of the court will enter judgment accordingly. Alternatively, if an offer of judgment is not accepted and the judgment obtained by the plaintiff is not higher than the offer of judgment, the plaintiff can be ordered by the court to pay the “costs” incurred by the defendant after the offer of judgment was made.
Different jurisdictions have various definitions of “costs.” It may or may not include attorneys’ fees, but usually will include litigations costs (e.g., expert witness fees)As you can imagine, the timing of an offer of judgment is a crucial part of the strategy. It is best utilized early, often after the close of discovery but before trial preparation begins.
This tool is available in Maryland only in healthcare malpractice claims; however, it is available in all civil actions in the District of Columbia.
RSRM Associate Attorney Jessica Butkera was recently successful in utilizing an offer of judgment in a civil case in the Superior Court for the District of Columbia. In this case, Plaintiff failed to accept the $15,000.00 offer made by the Defense. Ultimately, after a three-day jury trial, the Plaintiff was awarded only a $13,000.00 verdict after her attorney requested a judgment of $100,000.00. Ms. Butkera currently has a Motion for Costs pending before the Court. These costs include her expert witness fees, which is often a large expense in taking a case to trial.
-- Contributed by Partner Andrew T. Nichols