Offers of Judgment
Consider carefully
Florida law allows parties in a lawsuit to make Offers of Judgment in advance of trial, which can have a significant impact on the case. It is important to know how Offers of Judgment operate so that you can make a reasoned and informed decision about whether to make an Offer of Judgment yourself and whether to accept one offered by the other side.
Briefly, an Offer of Judgment includes the entire amount sought as a fair verdict award by the party making the offer. If it is rejected and the verdict heavily favors the side that made the offer, the losing party may have to pay a part or all of the prevailing party’s attorney’s fees.
Consider the following hypothetical:
In an auto-accident case, the plaintiff claims that the total damages she suffered amount to $150,000, but she is willing to settle for $100,000 to avoid court. Meanwhile, the defendant claims that the plaintiff’s damages were only around $70,000, and that she contributed equally to the accident, so his share should only be $35,000. He’s willing to settle the case for $50,000 to avoid trial.
Imagine that the plaintiff makes an Offer of Judgment for $100,000 and it is not accepted within thirty days. The case ends up going to trial and the court awards the plaintiff $125,000, an amount that is 25% greater than the amount requested in the Offer of Judgment. The defendant may now be required to pay reasonable costs and attorney’s fees incurred by the plaintiff after the Offer of Judgment was served.
Now imagine instead that the defendant makes an Offer of Judgment for $50,000 which is not accepted by the plaintiff within thirty days. At trial, the court awards the plaintiff only $37,500, an amount 25% less than the defendant’s Offer of Judgment. Now it is the plaintiff who may be required to pay the defendant’s reasonable costs and attorney’s fees incurred by the defendant after the Offer of Judgment was served. More, the defendant is often allowed to deduct those fees and costs from the award amount before it is paid.
Offers of Judgment can be an effective negotiating tactic, and a way to strongly suggest to the other side that you feel your evaluation of the case is correct. Importantly, if you cannot resolve the case before trial, the other side cannot tell the jury about your Offer of Judgment in order to convince them to give you less than you’re asking for.
Consult with your attorney about whether an Offer of Judgment would be appropriate in your case, and especially consider whether you should accept the Offer of Judgment proposed by the opposing party.
The law firm of Wagner, McLaughlin & Whittemore has experience in offers of judgment and all other aspects of civil litigation on behalf of their Tampa, Florida clients. Contact us today for a free consultation.
Work with Tampa’s “Bad Faith” insurance attorneys!
Florida law requires insurance companies to act in “good faith” toward their policyholders by promptly investigating insurance claims, settling claims at or below the policy limits whenever
Insurance companies aren’t always on your side.
possible, and protecting policyholders from judgments in excess of their policy limits. That’s a complicated way of saying that Florida lawmakers want insurance companies to protect their policyholders from bankruptcy and loss of personal assets in the event of a successful lawsuit against that insured customer.
But how does that actually work? Consider the following hypothetical:
You are involved in an accident with a driver who, while texting on his cell phone, ran a red light directly into the passenger side of your vehicle. Your car is damaged beyond repair, and you have injuries requiring hospitalization and surgery. Your medical bills alone are $125,000. The other driver, Bob, has insurance with a policy limit of $100,000, but his insurance company, Company A, only wants to pay $60,000 because it claims that you were partially to blame for the accident. You offer to settle for $100,000, but Company A refuses to settle despite Bob’s request that it do so.
At trial, the jury awards you $300,000, but because Bob’s insurance with Company A only covers up to $100,000, Bob will have to pay the remaining $200,000 out of his own pocket. Bob doesn’t have $200,000, though, so he is in danger of filing for bankruptcy. As a result, your chances of recovering the remaining $200,000 are slim.
This is where the bad-faith doctrine comes in. If you or Bob can prove that Company A failed to settle the claim for the $100,000 you demanded when, under all the circumstances, it could have and should have done so had it acted fairly and honestly toward Bob, then Company A will be required to pay the entire judgment amount of $300,000.
The bad-faith doctrine thus serves as a powerful incentive on insurance companies to correctly evaluate claims against their insureds and to settle cases within policy limits. If they do not, the companies run the risk that they will have to pay over and above the limits of the policy, along with all the expenses they incurred during the trial.
The bad-faith doctrine can obviously help you as a plaintiff, when negotiating against an insurance company. If you know the limits of the defendant’s insurance policy, and if you are willing to settle the case within those limits, you can leverage the bad- faith doctrine to give you an extra edge in negotiation. Always consult with your attorney before relying too heavily on this doctrine, however: If your legitimate claim only amounts to half the policy limits, the insurance company is unlikely to pay the maximum just to avoid trial.
The Tampa, Florida law firm of Wagner, McLaughlin & Whittemore has experience representing clients against insurance companies. Contact us today for a free consultation.
Board certification identifies experts
Wagner, McLaughlin & Whittemore boasts 5 Florida Board Certified Attorneys!
Once an attorney has graduated from law school and passed the Florida State Bar exam, there are very few restrictions on the types of law he or she is considered qualified to practice in Florida. While most young attorneys will seek out mentors and employment in firms with more experienced attorneys, there is nothing stopping a newly-minted attorney from renting an office, opening his solo practice, hanging a sign in the window, and soliciting your business for almost any area of law he chooses. A young attorney’s success in this sort of endeavor, as anyone can guess, is mixed, and potential clients seeking legal assistance are left unsure of the quality of advice they’ll receive.
Past the first few years of practice, even attorneys who have enjoyed a long career in the law are not a good fit for every area of law. An attorney, for instance, who has practiced primarily in business law for thirty years is less likely to offer accurate advice in the area of personal injury. Similarly, a criminal defense lawyer is less likely to know the ins and outs of estate planning, and a family lawyer is unlikely to be the best choice for a client seeking assistance in international law.
Then, even if you’ve identified several potential attorneys who have practiced your needed area of law for many years, it can be hard to decide which one will be able to give you the best advice.
Fortunately, the Florida Bar Association has developed a process to certify attorneys who can be legitimately considered experts in their various fields. This certification – called Florida Bar Board Certification is one of the highest recognitions a Florida lawyer can receive, and is only granted to seven percent of all Florida attorneys. Board Certified attorneys must meet the following requirements (from the Florida Bar’s information sheet):
- Practice law for a minimum of five years.
- Demonstrate substantial involvement in the field of law for which certification is sought.
- Pass satisfactory peer review of competence in the specialty field as well as character, ethics and professionalism in the practice of law.
- Satisfy the certification area’s continuing legal education requirements.
- Receive a passing grade on the examination required of all applicants or meet strict criteria to exempt the exam.
- Recertify every five years.
The Tampa Bay law firm of Wagner, McLaughlin & Whittemore boasts five attorneys who are or have been board certified as civil-trial advocates by the Florida State Bar. We specialize in fighting for the rights of those who have been injured by others, and we would be honored to fight for you, as well. Contact us today for a free consultation.
Consult with a Tampa civil lawyer to understand your options.
During most civil cases, there comes a period of negotiation, where you start trading proposed settlements with the other party. For example, you, through your accident attorney, may tell the other driver the amount of money you would prefer to receive in the case. This is normally an amount you feel you could receive if you went to trial, and you are giving the defendant a chance to simply pay that amount and avoid the expense and stress of a trial.
In many cases, the other party will respond with a low number and suggest that you accept their number instead of yours to avoid the expense and stress of a trial yourself.
As aggravating as it can be, such is the normal process of negotiation.
Before you ball their settlement offer up and return it to them along with a few colorful words, there are a few things you should consider, together with your attorney:
• Trials are expensive, both in time and in money. If you can reach a settlement out of court, even if it’s lower than you hoped it might be, you will save yourself the time and expense of the trial. Your attorney can help you figure out if that makes the low offer a good deal for you, on balance.
• Their low offer may actually be higher than what the jury will eventually award. Though it’s difficult to contemplate, it is possible that the jury will sympathize more with their case than with yours, and will award you nothing, or a mere fraction of what the other side is offering.
• Their low offer might not be available later. If you discover new information that harms your case, you could later feel that the low offer was actually generous, and will wish to have it back. If, however, you don’t accept or actively reject an offer, the other party is not required to keep it available for you.
Any time you receive an offer to settle the case, meet with your attorney, keep an open mind, and carefully consider the pros and cons of accepting it. You may eventually choose to continue negotiating for a different amount, or even to go to trial, but you should at least be able to look back and know that your decision was thoughtfully made.
If you are in need of a legal malpractice, personal injury, medical malpractice, accident, or whistleblower lawyer in Tampa, Florida, the Tampa Bay attorneys of Wagner, McLaughlin & Whittemore would be pleased to speak with you. We fight aggressively to protect the rights of our clients. Click here or call us today at (813) 225-4000 to schedule a free consultation.
