Proposals For Settlement

It seems that with great frequency, clients want me to recover the attorneys' fees that are or will be expended in the course of a particular action. The reasons offered for this are somewhat varied but usually have a common denominator - clients are irritated at being dragged into a lawsuit and having their time, money and resources spent on something other than managing and running their business.
I can't say that I find fault with this logic. Of course, then again, I am the lawyer who represents them. On top of that, I get to be the one to break it to clients that the law does not generally allow for the recovery of attorneys' fees in litigation. There are only two exceptions to this rule in the State of Florida: 1) the parties have a contract that allows for the recovery of attorneys' fees if litigation arises; or 2) there is a statute that allows for the recovery of attorneys' fees.

Under this second scenario, Florida has adopted a statute that governs proposals for the settlement of litigation. In essence, what this statute does is expose parties for the payment of their adversary's attorneys' fees if they reject a reasonable settlement offer (and which offer otherwise complies with the specific requirements of the statute). The way this works for each party is set out in 768.79 Fla. Stat, as follows:

"If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served, and the court shall set off such costs in attorney's fees against the award. When such costs and attorney's fees total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the award to the plaintiff.

If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served."

There are also some other requirements for a proposal to be valid. According to the statute, it must:

(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.

There are some other matters addressed by the statute and you should know that a lot of litigation has arisen just from the construction and application of this statute.

For complete text of this statute, please consult 768.79 Fla. Stat.

Have a great week.