Brush Up on Your 998 Offers

Timothy Kowal, Esq.
October 5, 2020
Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up for a lot for many of attorneys -- particularly those of us who did not find the choice between law school and accountancy school a particularly vexing one.

Defendant makes 998 offer for $12,001. Silent on pre-offer fees/costs. (Thus, by law they are added to the offer.)

Plaintiff declines.

At trial, plaintiff recovers $11,490. And is entitled to pre-offer fees/costs. So trial court rules that $12,001 was LOWER than $11,490.

Held: Reversed. The Fourth Appellate District explained that the 998 offer, because it was silent on pre-offer fees/costs, included them. So the comparison was:

$12,001 + (F+C) versus $11,490 + (F+C)

Drop (F+C) from both sides of the equation and you get $12,001 > $11,490. Plaintiff should have taken the 998. No post-offer fees and costs for you -- defendant gets to recover post-offer fees and costs.

Still, Justice Ikola thinks this is overly complicated and suggests that the Legislature consider simplifying it.

Martinez v. EatLite One (Cal. Ct. App. D4d3 Oct. 3, 2018)

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