Getting Attorneys’ Fees in Injury Cases: A Double Edged Sword

We often think that in lawsuits of any kind, including injury cases, that attorneys’ fees are automatically awarded to the prevailing party. But in our system, attorneys’ fees are only awarded where there is a contract or statute providing for them.

In ordinary negligence cases, there is no provision for attorneys’ fees. A jury cannot award attorneys’ fees and a defendant is not obligated to pay them, even where the defendant was found liable by a jury.

But Florida has a unique fee-shifting statute that can be used to obtain attorneys’ fees. The problem is that it can also be turned around, and used to make injured victims pay the fees of negligent defendants.

Florida’s Offer of Judgment Statute

Florida’s Offer of Judgment (OJ) statute is a fee-shifting law, designed to make parties think long and hard about bringing a case, or defending a case which should be settled.

The OJ statutes allow a plaintiff to make an offer to settle a case to a defendant. But unlike traditional offers, those done under the statute may require a defendant to pay an injured victim’s attorneys fees if the judgment is 25% greater than the offer made.

So, for example, if a plaintiff offers $10,000 to settle the case, and the offer is rejected, and the jury ultimately awards more than $12,500 (the $10,000 plus 25%), the plaintiff will recover the judgment, plus any and all attorneys’ fees. (Remember that in a case without an OJ, a defendant does not have to pay attorneys fees to a plaintiff—it only has to pay the judgment.)

The same goes for a defendant. If a defendant makes an offer to settle, and the plaintiff ultimately recovers 25% less than the offer, the defendant can get attorneys’ fees from the plaintiff. So, for example, if a defendant offers $10,000 to settle and the offer is rejected, and the plaintiff eventually recovers less than $7,500 ($10,000 minus 25%), the plaintiff has to pay the defendant’s attorneys’ fees.

Statute Creates Risk of Victim’s Payment of Fees

The oddity here, is that it’s possible for a plaintiff to win a case, but owe a defendant money.

In the example above, where the defendant has offered $10,000, let’s assume a verdict is entered for $7,400—just less than the $7,500 threshold. The defendant is entitled to attorneys’ fees under the OJ statute.

If the defendant has $15,000 in fees, the plaintiff would owe $15,000 minus the $7,400 awarded to him—or, $7,600. The victorious plaintiff would come out with a judgment against him, owing money to the negligent defendant that caused the injury.

It’s an absurd result, but the statute was instituted to encourage settlements. What really happens is that the OJ statute is used as a weapon by defendants to intimidate suing plaintiffs. Plaintiffs who may have good cases, but are uncertain what a jury may award, may be hesitant to go forward, knowing they may owe money even if they win the case.

Good attorneys can use the statute to their advantage, and help you assess whether it’s wise to move forward in your claim or not. But as you can see, the OJ statute can have unanticipated consequences, and anytime an OJ is served, you should speak to your attorney about the benefits of accepting or rejecting it.

It’s crucial to have advice and counsel through all stages of the litigation process. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.


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