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