What's weird about this opinion is that I thought this was already totally obvious. Indeed, I teach the same thing to the law students in my Pretrial Practice class, and never thought for a second that there was any dispute at all about it. Yet here you have a trial court holding otherwise.
Okay. Guess it's not so clear after all.
Though ultimately, the Court of Appeal's opinion seems spot on. So at least it's clear now.
It's a pretty simple fact pattern. Plaintiff sues for discrimination. Defendant makes a 998 offer for $12,001. The offer's silent on costs and fees, which automatically means they're added to the offer. (In other words, if Plaintiff accepts, she gets $12,001 plus her recoverable costs and fees.)
Plaintiff doesn't accept, and the case goes to trial, at which the jury awards her $11,490. Less than the $12,001 offer.
Leading to a flurry of competing cost and fee motions.
The trial court thought that the $12,001 offer was LESS than the $11,490 award because Plaintiff was entitled to costs and fees in addition to the jury's award. But the Court of Appeal rightly sorts things out in a way that's consistent with how I've always thought (correctly, as it turns out) you calculate these things. (Mind you, the Court of Appeal's way of explaining this is slightly different than how I teach it to my students, but the essential substantive attributes are the same.)
Here's the deal: Defendant offered (essentially) $12,001 plus costs and fees. Plaintiff didn't do better than that at trial; she only got $11,490 plus costs and fees. Essentially, she should have taken the 998 offer. You just have to compare the $12,001 to the $11,490, since Plaintiff's pre-offer costs and fees are recoverable under both. Since the $11,490 award is smaller than the $12,001 offer, Plaintiff is subject to cost-shifting even though she's the "prevailing party" at trial (since he didn't "prevail" as contrasted to the 998 offer).
So we give her (1) the jury's award -- $11,490, (2) plus her pre-998 offer costs and fees (since she was forced to incur and hence should recover those whether she accepted the 998 offer or not), but (3) don't give her any post-998 offer costs and fees (since she should have accepted the offer), and (4) give the Defendant its post-offer costs (since it should have never had to incur those since Plaintiff should have accepted the better 998 offer) and, in the court's discretion, any post-offer expert fees.
Exactly right. Exactly as the Court of Appeal holds.
Justice Ikola suggests at the end of this opinion that "Having reached this disposition, we nonetheless believe the bench and bar would be well
served if the Legislature amended section 998 to clarify how costs and fees should be
addressed in a 998 offer." Not as far as I'm concerned. Wouldn't hurt, of course. But today's opinion -- and what some of us already teach our law students anyway -- already seems pretty darn clear to me. Let the Legislature deal with bigger fish. The thing seems fairly well settled already in my book.
If only as a result of today's opinion. Which, I think, reaffirmed what most of us -- though, admittedly, not the trial court below -- already knew.
