Las Vegas Injury & Accident Attorney Blog

Offer of Judgments have many rules that apply to the basic core rule that a party may have to pay attorney fees and costs if they are incorrect in their decision to accept such an offer.  The Nevada Supreme Court has outlined many rules as they apply to Offer of Judgments in Nevada Law.  Here is a summary:

1.)  An Offer of Judgment is irrevocable after it is served for 10 days

2.)  An Offer of Judgment mandates an award of Costs and Discretionary attorney fees if beaten at trial.

3.)  An Offer of Judgment must be made 10 days prior to trial as calculated from the actual trial date. Pursuant to NRCP 6(a), the trial date itself, is excluded from the computation and the day the offer is served is included.

4.) An Award of Attorney’s Fees are Discretionary and Costs are Mandatory.  Under former NRCP 68, attorney’s fees and costs may be allowed as follows:  “If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall not recover costs, nor attorneys’ fees, but shall pay the costs and attorneys’ fees, if any be allowed, of the party making the offer from the time of the offer.”

In addition, NRS 17.115(4)(b) provides that

If the party to whom the offer of judgment is made fails to obtain a more favorable judgment, he cannot recover:

(b) Costs or attorney’s fees,

and the court shall order him to pay to the party who made the offer that party’s taxable costs incurred from the date of filing the complaint, and may order ․ reasonable attorney’s fees incurred by the party making the offer from the time of the offer.

PALACE STATION HOTEL CASINO INC v. JONES

PALACE STATION HOTEL & CASINO, INC., Appellant, v. Keith JONES, Respondent.

No. 27129.

– June 15, 1999

BEFORE:  MAUPIN, AGOSTI and BECKER, JJ.

DISCUSSION

I. Offer of Judgment

Nevada’s offer of judgment rule is set forth in NRCP 68 and NRS 17.115.   At the time of the underlying action, NRCP 68 provided in pertinent part:  “At any time more than 10 days before the trial begins, any party may serve upon the adverse party an offer to allow judgment to be entered for the money or property or to the effect specified in the offer, with costs then accrued.” 1

NRS 17.115(1) provides that:

At any time more than 10 days before trial, either informally or at any pretrial conference presided over by a judge of the court in which the action is pending, any party may serve an offer in writing to allow judgment to be taken in accordance with the terms and conditions stated at that time.

NRCP 6(a) prescribes the manner in which the ten-day time period provided under NRCP 68 and NRS 17.115 is to be computed.   See NRCP 1.

In computing any period of time prescribed or allowed by these rules, ․ or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.   The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a non-judicial day, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a non-judicial day.

Share and Enjoy

An OOJ or Offer of Judgment is a tool for parties in litigation used to shift risk to an opposing side.   The procedural rule allows judgment to be taken against that party in a specified amount.  The offer of judgment is a formal way to make an offer to settle the case; hence, a party may believe the value of the case is worth more (from the plaintiff’s side), or a party may believe the case is worth less (from the defendant’s side) and make an offer accordingly.  The risk of such an offer is that is may be accepted at a lower threshold than a jury might award.   NRCP (Nevada Rules of Civil Procedure) and the FRCP (Federal Rules of Civil Procedure) both govern this strategic move.

An OOJ can be made at anytime after the commencement of the litigation–hence after an answer is made.   Certainly, to be fair to both sides, and surely to meet certain legal factors, an excellent time to do an offer of judgment is a time when both sides are truly familiar with the facts of the case and can make a reasonable judgment as to whether the case is worth settling or rolling the dice at trial.  Recently, the Nevada Supreme Court ruled that service by fax of an Offer of Judgment is only valid if, of course, the party to which service is made upon has consented to such service( by fax).  Given technical difficulties of fax machines, internet service, and the like, our firm does not allow service or notice by fax.  Serving an OOJ by fax is not a good way to notice this serious weapon, and should be served in person by what us lawyers call: a signed ROC,  ”Receipt of Copy.”  This way, the OOJ is properly served with no argument as to notice.

What exactly happens when a party to a car accident receives an offer to settle involving NRCP 68 or NRS 17.115?   Well, a party may have to pay COSTS of litigation AND ATTORNEY FEES in the event of losing.  This is a powerful tool to get a case resolved when the stakes are high. Litigation is not a cheap activity, and a failure of a party to not accept a reasonable offer can have dire consequences.   In fact, a party can actually be successful at trial (e.g win the case), but lose financially. Exactly how?  Real simple.  Here is an example:  A party wrongly believes their accident case is worth $50,000 so they make an OOJ of slightly lower:  $45,000.  The Defendant disagrees with the “outrageous” offer.  The clients medical expenses are $10,000 and the client has totally healed.  10 days goes by and the offer of judgment is automatically rescinded due to non-acceptance.  They proceed to a jury trial.  Now, the jury awards $30,000.  $15,000 less than if they had accepted the offer.  Big Problem.   The judge in the matter can then award the Defendant attorney fees and costs!

Those costs might well exceed $100,000.  So, this example illustrates that a party who had a good case and won, will lose $70,000!  Not a good result.  The secret weapon is there!  An opposing example:  A party offers to settle for $1 million dollars on a wrongful death claim, and the opposing side refuses the offer thinking they can beat it at trial.  The personal injury attorney smartly decides the case can be proven and the damages will likely be awarded much higher.  The case proceeds to trial and a Nevada jury awards $2 million dollars.  The Plaintiff here will make more than just the award of $1M, but also attorney fees (billed by the hour since the OOJ was made), and gets the total costs of bringing the case to trial.  This is a win, win.   If no Offer of Judgment was ever made the case for an award of fees and costs is discretionary and is optional–which in all likelihood means no award of fees and costs.  If you have a case and would like the experience and expertise of Las Vegas Personal injury lawyers Joseph Benson and Ben Bingham, call us today. 702-382-9797

Benson & Bingham  ”Here to help you litigate your case.”

Share and Enjoy

Last week Honda Motor Company recalled thousands of Honda Accords and Civics due to faulty gear shifter in the early 2000 models.  The investigation revealed the Honda’s key can be removed when the car is other non-Parked positions.  This will create a reverse situation if the car is left in Neutral or in the reverse position.  Just after this Honda recall, in a similar park to reverse case in Kingman, Arizona, A 6-week-old girl died after being run over in a driveway in Lake Havasu City on August 10, 2010. The Police Department Sgt. Joe Harrold said officers responded at 11:26 p.m. Monday to a home on Newport Drive and that a 24-year-old Lake Havasu City woman had parked her 2004 Ford pickup on an inclined driveway and that the vehicle rolled backward as she was unloading items from the passenger side.

Obviously, this case is under investigation as the cause of the the reversal, but truly this vehicle model has been plagued by issues surrounding the vehicle’s brake shift interlock device which allows for movement of the gear shifter when the vehicle is in the ON or MIDDLE key position without depressing on the brake pedal.  It is unclear to this author whether the 2004 is even available in a stick shift, or the circumstances of why the vehicle even was allowed to move given the location of the driver–in the passenger seat.   This is the exact auto injury case that Benson & Bingham will investigate for you should you suffer this unusual, but not unheard of, event.   Call Benson & Bingham today if you have experienced this type of automotive tragedy: 702-382-9797

Share and Enjoy