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Weighing the Plusses and Minuses of Your Options When It Comes to Settling or Litigating Your California Injury Case

One of the most important decisions you’ll have to make as a plaintiff in a personal injury lawsuit is whether to settle your case in exchange for a specified settlement payment, or to pursue your case all the way to a verdict, leading to the less-certain outcome decided by a jury or judge. While a settlement may offer greater certainty and immediacy, it may still be unwise if the settlement offer simply is too low.

Another thing to consider when weighing the relative merits of settling or litigating is a statute called Code of Civil Procedure Section 998. This settlement is meant to motivate parties to settle their cases. However, if you choose not to settle and your outcome at trial is successful enough, that success may open the door to recovering even more. Making the “right” call on settling versus litigating is one of the most critical choices you’ll make and just one among many vital decisions where having the advice and counsel of a skilled San Mateo injury attorney can benefit you immeasurably.

Section 998 offers are sometimes described as settlement offers “with teeth.” For defendants, the law means that, if they make a valid 998 offer that the plaintiff refuses, and if the jury awards the plaintiff an amount less than the settlement offer (or if the jury returns a defense verdict), then the defense can obtain an award forcing the plaintiff to pay a potentially significant amount of costs and attorneys’ fees.

However, the law already gives successful plaintiffs the right to obtain attorneys’ fees and costs as a “prevailing party.” So, can Section 998 help you as a plaintiff, and if so, how does it work? As for the mechanics, it works similarly to a defense 998 offer. You, as the injured plaintiff, make a valid 998 offer. If the defense refuses and the jury eventually awards you damages in an amount greater than your settlement offer, then that triggers an obligation for the defense to pay certain costs.

Enhancing your total award with Section 998

As for the exact way that this statute can help you, it is important to know that not all fees and costs are recoverable by any and all prevailing plaintiffs. Expert witness fees, which can be a very substantial sum, are not recoverable simply because you’re a prevailing party. However, if you made a valid 998 offer, the defense refused it and you “beat” that amount in your judgment award, then you can seek and obtain payment of your expert witness fees.

Here’s a recent example of how it works. R.B. alleged that he was stopped in traffic on the 110 freeway in his pickup truck when A.G., who was behind R.B., didn’t stop and rear-ended him. The accident allegedly caused R.B. to suffer chronic lower back pain and two sizable disc protrusions in his spine, so he sued. (Los Angeles Superior Court Case No. BC604951). The defense argued that R.B. had suffered nothing more than a back sprain/strain. To strengthen his case, R.B. presented expert evidence from a Los Angeles-area orthopedic surgeon.

R.B.’s final 998 offer before trial was $500,000. At the trial’s end, the jury awarded R.B. $575,000 in economic damages and $475,000 in non-economic damages. Because the award that the jury returned was greater than the settlement offer, that meant that R.B. was entitled to demand that the defense pay the costs that R.B.’s orthopedic surgeon expert charged him, in addition to other costs and fees that R.B. was entitled to receive as the prevailing party.

In other words, there are many pathways to, and degrees of, success in your personal injury case. To get the most out of your case, retain the experienced San Mateo personal injury attorneys at the Law Offices of Galine, Frye, Fitting & Frangos. Our attorneys have been putting their knowledge and skill to use for the benefit of injured people for many years. To set up a free consultation with one of our experienced attorneys, contact us at 650-345-8484 or through our website.

More Blog Posts:

A Northern California Man Lands $160K Settlement After a City of Sacramento Truck Rear-Ends His SUV, San Mateo Injury Lawyers Blog, published March 6, 2019

Knowing How Much Your Injury Case is ‘Worth,’ and How This Knowledge Can Help in Your California Lawsuit, San Mateo Injury Lawyers Blog, published September 20, 2018

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    I retained Ilya Frangos of Galine, Frye, Fitting & Frangos on a business litigation matter involving a frivolous lawsuit filed in federal court. Ilya guided me through the case and helped make sure that I understood the process… He always took the time to answer all my questions and helped put my mind at ease. I would highly recommend him and this firm!


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