Plaintiff collides with a semi-trailer while biking in the bike lane and sues. She makes a section 998 settlement offer for $1 million in 2021, and the same offer again in 2022 and 2023. All of those offers were rejected.
Then, in April 2023, six months before trial, she makes a new section 998 offer. For $2 million. Also rejected.
So goes to trial and is awarded damages of $1.06 million.
She then seeks $993,000+ of costs as the prevailing party, including over $600,000 in interest and expert fees, claiming that her $1.06 million recovery was greater than her initial 2021 offer.
She doesn't get that, and appeals, but the Court of Appeal affirms. Only the last section 998 offer controls; that one was for $2 million, and she didn't do better than that at trial.
It seems absolutely crazy to me that plaintiff's counsel made the final $2 million offer. A massive strategic error, for utterly no point. There was already an expired offer, two years earlier, for $1 million. Why make another 998 offer, at a higher price point?
Zero reason to do so. If you want to indicate that you're only willing to settle for double what you asked for before, go ahead. Just don't make it a 998 offer.
Doing so here cost the client dearly. Over half a million bucks.
