When a Case is Filed in Court
Offers of judgment can only occur after a case has been filed in court, and must be served on the opposing party at least fourteen days of the date of trial. In our office, we occasionally see offers of judgment from insurance defense attorneys on Oregon personal injury claims. There is usually some disagreement on the value of the personal injury claim, and it is usually close to trial. This tactic is used to increase the risk of going to trial because, depending on the trial's outcome, a Plaintiff may end up recovering less money in any judgment. It's a way for an insurance defense attorney to call a plaintiff's bluff, or make a "dare." Offers of judgment force a reevaluation of the claim, and we receive an offer like this, we go over it with our client to make sure that they are making an informed decision on moving forward to trial.
How it Works
When one party files an "offer of judgment" with the other party, the offer is specific, including the amount of money offered, and whether it includes any liens or attorney fees. Usually, it is the defendant, or person or entity being sued that files an offer of judgment.
Under the rule, the plaintiff has seven days to respond to the offer of judgment. If the plaintiff accepts the offer, the plaintiff signs the offer, and files the document with the court. The parties then prepare a stipulated judgment, and the case is resolved. What happens if you decide not to accept the offer?
Rejecting the Offer
If the plaintiff does not accept the offer within the seven day deadline, the rule says that the offer is withdrawn. If the case goes to trial, and the plaintiff recovers more than the offer of judgment, nothing changes. The plaintiff can include in her judgment all the costs that the rules allows. These costs include witness subpoena fees, jury trial fees, and a prevailing party fee. In some cases, there may be a claim for attorney fee under a statute. If the plaintiff's beats the offer of judgment, she can still recover her attorney fees.
But, if the plaintiff does not beat the offer, her recovery is limited. The plaintiff will still recover the damages or compensation the jury determined in the verdict, but the plaintiff will not recover the cost of subpoenas, the prevailing party fee, and if there is a claim for attorney fees, that goes away too.