Legal Question in Civil Litigation in California

Re: liability

Section 998 of the Code of Civil Procedure provides that, not less than 10 days before commencement of trial, any party to an action "may serve an offer in writing upon any other party to the action to allow judgment to be taken in accordance with the terms and conditions stated at that time." The offer is deemed withdrawn if not accepted before trial commences or within 30 days, whichever occurs first.

If the offer is accepted, the accepted offer is filed with the court and judgment entered accordingly. If the offer is not accepted, and the person rejecting the offer does not obtain a trial result better than the offer, a number of cost-shifting mechanisms kick in. The prospect of such cost-shifting is designed to encourage settlement of lawsuits before trial. T.M. Cobb Co. v. Superior Court (1984) 36 Cal. 3d 273, 280.

What is malpractice is difficult to say from the limited information you've given. An attorney is required to discuss offers made with his or her client, but if some communication difficulty arose, proving that the client did not discuss settlement in some form may be difficult.

Malpractice is a civil claim, and is completely separate from a bar complaint. The standards for each are different.

Best of luck.

Re: liability

Your lawyer should have told you, but malpractice usually requires a different result if the malpractice was not committed. I will provide you with free consultation if you contact me.

Re: liability

Mr. Miller gave a good explanation of CCP 998.

Your attorney had an obligation to communicate all written settlement offers to you. Failure to do so may or may not be malpractice.

Failure to give notice of a written settlement offer is a violation of the attorney's ethical obligations. You can make a complaint to the State Bar. They will investigate the matter and determine whether the attorney should or should not be disciplined for the failure to do so. Not knowing all of the facts, I cannot predict what may happen.

Feel free to contact me if you want to discuss this matter further.

Re: liability

CCP 998 provides a vehicle to make an offer to compromise a civil lawsuit. If the party rejects the 998 offer then they will be responsible for among other things expert costs and pre judgment interest under Civil Code 3291 if a better result is not achieved.

A 998 is a settlement offer which needs to be communicated to the client. This omission of the responsibility to inform you of the 998 offer could conceivably give rise to a right to recovery against your attorney if you can show that you would have accepted the 998 offer had you known and that you suffered a financial loss as a result of the attorneys conduct. The financial loss is less recovery since you will be responsible for expert costs and prejudgment interest.

You may want to talk to an attorney in your area. Good luck to you.

Re: liability

a 998 is a statutory offer by the other side to settle for a certain amount. Your attorney should have notified you.