Lawmakers hold hearing
Credit: Vladislav Chorniy
Florida lawmakers are also expressing an interest in the Offer of Judgment statute (s.768.79, F.S.), colloquially known as the Proposal for Settlement (PFS) statute. Its intent is to incentivize parties in lawsuits to accept reasonable settlement offers and to punish them when they take up court time on cases that should have settled.
The House Civil Justice Subcommittee last Thursday heard from four trial attorneys with significant experience who were invited to share their knowledge and assessment of how the current statute is working and where it needs improvement. One of them provided the above intent as part of a very good primer on the statute that you can review in the subcommittee materials. Subcommittee Chair Will Robinson (R-Bradenton) did not say whether there would be a bill in the upcoming session on this topic.
Under current law, when one party makes an offer that complies with the statute, the other side has 30 days to evaluate whether to accept or reject it. Rejection could mean having to pay the other side’s fees and costs from the date the offer was served to the end of the case, including any appeal. If the “judgment obtained” at trial is 25% greater than the offer that was rejected, the party that rejected it has to pay those fees and costs.
One of the attorneys, Braxton Gillam, IV from Jacksonville, said he has represented both plaintiffs and defendants and has seen how the statute impacts each party in a unique way. Gillam said the Florida Supreme Court has issued Rules of Procedure that – in theory – are supposed to carry out the intent of the PFS statute. However, a recurring theme from panelists and legislators was that some of the problem is that the current Rules can be interpreted to conflict with or otherwise expand upon the original intent of the statute. Gillam implored the legislators to understand the complications that have resulted from having different procedural rules, case law, and statutes all addressing the same issue. He closed his remarks with a simple request: “Please make the process simpler.”
Several attorneys offered potential solutions. They included expanding the 30-day limit for a party to evaluate a PFS, reducing the percentage of variance from 25% to 10%, and removing the requirement that costs be included in the PFS,
The issue of costs was a big part of the conversation. One legislator cited examples he knew of where the plaintiff was left with a fraction of the total judgment due to substantial deductions by their law firm. One attorney responded that costs should be taken out of the calculation until the very end of the case, due to uncertainty. Another reminded everyone that there are established guidelines for costs and the judge has complete discretion, including reducing excessive requests. Removing those costs it was argued, would remove a deterrent to rejecting a reasonable offer and create an “access to the courts” problem, especially for low income parties that cannot afford to hire a lawyer and engage in protracted litigation.
One lawyer offered these specific proposed changes in the statute. Lisa Miller & Associates is monitoring the bill filing process leading up to the start of the Florida legislative session on January 9, 2024 and will report on any bills filed on this topic in future editions of the LMA Newsletter.
LMA Newsletter of 11-20-23
