Unlike in many other countries, a prevailing party in a Florida injury lawsuit does not automatically get awarded attorney’s fees. There are only two ways that a prevailing party in a lawsuit can get attorney’s fees—if there is a contract awarding fees or a statute or law that awards them.
In the personal injury context, this creates problems. Lawsuits for injuries do not involve contracts with attorney’s fees provisions, and while there are Florida laws that do provide attorney’s fees, for the most part, personal injury lawsuits are rooted in our common law. This is law that has its history from the decisions of courts, not in statutory law that would provide attorney’s fees.
So, is there any way that a victim who wins a personal injury case can force the other side to pay the victim’s attorneys’ fees? The good news is that there is. The bad news is that the right cuts both ways and can be used by a prevailing defendant to make a victim pay the defendant’s attorney’s fees should the victim lose.
The Offer of Judgment Statute
The law is called the Offer of Judgment statute—sometimes called the OJ. The law was passed to encourage litigants to settle cases instead of going to trial. The OJ law allows a party to propose a settlement offer to the other side in writing. If the settlement offer is accepted, the case is over on the terms of the settlement. If the offer is rejected, then things get interesting.
If the victim proposes a settlement that is not accepted by the defendant and the victim then later wins 25% more than the offer at trial, the victim will be entitled to have the defendant pay the victim’s attorneys’ fees, in addition to whatever the jury awards for damages.
For example, assume the plaintiff offers to settle a case for $10,000. If the offer is rejected and a jury eventually awards $12,500, the victim would be entitled to attorney’s fees on top of that amount.
When Defendants Use the OJ Statute
The odd and sometimes frustrating part of the law for victims, is the ability for the defendant to obtain fees. If a defendant makes an offer to settle, and the offer is not accepted, the defendant can be awarded fees if the victim does not recover 75% or more than the rejected offer.
Assume the defendant offers $10,000 to settle, and the victim rejects the offer. The victim must recover $17,500 or more in trial, or he would have to pay the defendant’s attorney’s fees.
This has the potential to produce the bizarre end result of a victim who wins a case, but can end up owing money to the defendant. In our example, assume the victim won $15,000 at trial. Because that is less than the $17,500 he or she had to win in order to avoid paying the defendant’s attorney’s fees, the defendant can now ask the court for fees. If the defendant had $16,000 in attorney’s fees, the victim now owes the defendant $1,000, even though the victim actually won the case.
OJs can Create Big Risks
Unfortunately, many defendants use the OJ statute as a weapon to scare victims into settling cases for less than what they are worth. Defendants often make small, meaningless offers just to create the threat of making the victim pay attorney’s fees.
OJs can drastically affect the potential outcome of a case. Assume that a victim has $1 million in damages, but it is not clear if the defendant is liable or not. The defendant makes a settlement offer of one single dollar. If the victim wins, he or she potentially is awarded $1 million. If he or she loses, the victim could potentially owe a defendant tens of thousands of dollars in attorney’s fees. That is a huge swing, that all depends on whether a jury believes the facts as presented by the plaintiff or the defendant. For a victim, the case goes from “all or nothing,” to “all or owing money.”
Cases involving comparative negligence can also create problems. For example, assume a plaintiff needs to win $17,500 to avoid paying attorney’s fees. The jury finds the plaintiff’s injuries are valued at $20,000, but finds the plaintiff 50% responsible for the accident, lowering the award to $10,000. The plaintiff’s comparative negligence not only reduced the verdict, but made the plaintiff liable for the defendant’s attorneys’ fees.
Other Requirements for Valid OJs
Even if the percentage thresholds are met, there are other requirements to obtain fees under the OJ statute. Any offer made by a party must be in good faith. That generally means it must be based on a reasonable evaluation of the strengths or weaknesses of the case.
Evaluating whether an offer is made in good faith has nothing to do with the amount offered. For example, even if a victim is catastrophically injured, a defendant’s offer of $1 may still be reasonable if the defendant feels that it has no liability and is likely to obtain a $0 verdict.
Where there are multiple parties, an offer must state to which plaintiff or defendant the offer is directed. If there are multiple claims in a case (for example, negligence and product liability claims), the offer must state which claims it is intended to resolve.
Non-monetary terms must also be specified to make OJs enforceable. Non-monetary terms can be things like requiring a party to keep information about the settlement confidential or requiring a party to certify that it has no unknown medical bills.
The OJ statute means that you need attorneys that are confident in their case and know how to win an injury case. If you are injured in an accident, contact Brill & Rinaldi today about a free consultation to discuss your case and your injuries.