Legal Question in Personal Injury in California

Re: auto accident

The use of a statutory offer of compromise is more of a matter of "art" than it is a matter of "science". The benefit to using it in a personal injury case include both the potential of receiving interest on the recovery AT TRIAL if you are successful in getting a judgment in excess of the offer, and the increase in the "costs" which you can recover AFTER TRIAL if you are successful in getting a judgment in excess of the offer (primarily the cost of expert witnesses, which you normally cannot recover from the losing side after trial). Therefore, the ART of making a statutory offer is deciding on the appropriate time to send the offer, and the appropriate amount of the offer.

A suggestion about the TIME: if negotiations have broken down and you are ready to draw a firm line of how much you will settle for, it might be an appropriate time to send a statutory offer. If you are sure that a judgment on your claim will exceed the policy limits available under the defendant's insurance, offering to settle the case within those policy limits might set the insurance company up for having to pay more than the insurance limits, IF they fail to accept the offer and you are able to obtain a judgment in excess of those limits.

Regarding the AMOUNT of the offer: You have to have an accurate feel for what a jury would most likely award on the case in the judgment, then to determine how much less than that you want to make the offer. Of course, it has to be a number that will be "enough" for you, if the defense were to accept it. We rely on our experience with the types of claims, the particular parties to the case, the defense attorneys, and the location of the court in getting a feel for the "jury value" of a case.

There is not an approved "Judicial Council Form" for a statutory offer of compromise. You will be able to find a format for an offer at any law library - look for the "California Forms of Pleading and Practice" books which will give you an idea of how to format the offer.

You serve the original of the offer to the attorney for the defendant. It is not filed with the Court unless it is accepted. Make sure to keep the original of your "proof of service" of the offer with your copy of the order.

This is a tricky situation. I don't advise you taking this step without, at least, consulting with a personal injury specialist. Expect a counter Section 998 offer.

Good luck!

John Bisnar, Senior Partner, Bisnar & Chase LLP, Personal Injury Attorneys & Counselors at Law, www.bestattorney.com, 800-956-0123, [email protected].

Re: auto accident

You would prepare the 998 offer as you would any other standard pleading. You should contact the Superior Court clerk where your complaint is filed and find out if you need to file it with the court. Also be aware that if you make a CCP 998 offer and you are awarded more money by a judge of jury you may be limited to the amount state on your 998 offer. I also suggest you read the code. If you have any further questions about your case or you need help preparing or appearing at trial please feel free to contact my office at 877-546-9918.

John Hayes, Esq.

Re: auto accident

Although no particular form is required, most lawyers file it on a pleading entitled Statutory Offer to Compromise pursuant to C.C.P. Section 998.

You should file it as soon as possible, but no later then 10 days before trial. READ THE CODE SECTION.