Hypothetical: In negotiating a settlement

[jrivera]

Jurisdiction

Florida

Hypothetical: In negotiating a settlement, I offer $500 to prevent a law suit. $500 is more that the party will get if they win but since attorney knows he may collect attorneys fees he wants more money $1600. I refuse to pay more than $500 so we go to court. The attorney wins lawsuit and asks for attorneys fees to be included.

Question: Can I then ask court not to award attorneys fees as I had offered more than the party would get had we not gone to court. Would I be able to use my communications with the attorney to prove this to the judge? Would it make a difference in the judges decision?

 

[C-Note]

Hypothetical: In negotiating a settlement, I offer $500 to prevent a law suit. $500 is more that the party will get if they win but since attorney knows he may collect attorneys fees he wants more money $1600. I refuse to pay more than $500 so we go to court. The attorney wins lawsuit and asks for attorneys fees to be included.

Question: Can I then ask court not to award attorneys fees as I had offered more than the party would get had we not gone to court. Would I be able to use my communications with the attorney to prove this to the judge? Would it make a difference in the judges decision?

I believe that any settlement discussions before litigation are priviledged. The only options that may be available to you is to appeal the judgement, declare bankruptcy or pay it.

 

[adjusterjack]

Can I then ask court not to award attorneys fees as I had offered more than the party would get had we not gone to court. Would I be able to use my communications with the attorney to prove this to the judge? Would it make a difference in the judges decision?

You can ask but you aren't likely to win on that issue because Florida statute 768.79 allows for the making of an offer of judgment as part of the lawsuit:

Florida Statutes 768.79 - Offer of judgment and demand for judgment - LawServer

Doing it before the lawsuit doesn't count.

 

[Michael Wechsler]

Be very careful when making any settlement negotiation since the discussions might be admissible in court. Unless it's clearly within the scope of settlement negotiations, anything that might serve as evidence outside that scope can be admissible. And anything that is discoverable outside of settlement negotiations, such as information that was gathered in the ordinary course of business and which could ordinary be subpoenaed and admitted may not be protected by federal and state rules prohibiting information provided in the course of settlement negotiations.

As the link doesn't work, here is an excerpt:

768.79 Offer of judgment and demand for judgment.
(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Where such costs and attorney's fees total more than 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 plaintiff's award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.
(2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer 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.

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(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:
(a) 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.
(b) 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.

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(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees.
(b) When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:
1. The then apparent merit or lack of merit in the claim.
2. The number and nature of offers made by the parties.
3. The closeness of questions of fact and law at issue.
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.
5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.
6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.
(8) Evidence of an offer is admissible only in proceedings to enforce an accepted offer or to determine the imposition of sanctions under this section.