Proposals for Settlement ONLY Apply to Claims for Monetary Relief

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument. In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered. But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for...

16 October

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Proposals for Settlement when there is a Contractual or Statutory Basis for Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

In an earlier posting I talked about proposals for settlement / offers of judgment. Again, these are used as a vehicle to create an argument for attorney’s fees down the road, particularly in cases where a party does not have a contractual or statutory basis to recover attorney’s fees. Please check out this article for more information on proposals for settlement because they have become an unnecessarily complicated vehicle with nuances that have resulted in an exorbitant amount of case law. As a result, while the argument to recover fees is preserved by serving the proposal for settlement, it is...

02 September

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Strategic Reasons for Serving a “Good Faith” Proposal for Settlement

Posted by David Adelstein

in Trial Perspectives

You know how proposals for settlement / offers of judgment ("proposals for settlement") work because I previously wrote about this topic. You know that such proposals for settlement need to be made in good faith. Remember, proposals for settlement create the argument to recover attorney's fees from the date the proposal for settlement is served on forward. The recent case of Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 40 Fla. L. Weekly D2052b (Fla. 3d DCA 2015), exemplifies a defendant relying on a proposal for settlement. In this case, a defendant served the plaintiff with a proposal for settlement....

29 March

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Considerations Involving Proposals for Settlement / Offers for Judgment

Posted by David Adelstein

in Trial Perspectives

There needs to be a contractual or statutory basis in order to be entitled to recover your reasonable attorneys' fees at trial. See Cadenhead v. Gaetz, 677 So.2d 96, 97 (Fla. 1st DCA 1996). This means either the contract needs to support a basis for the party to recover attorney’s fees (such as a prevailing party attorneys’ fees provision or a contractual indemnification provision that authorizes attorneys’ fees) or there needs to be a statute that authorizes you to recover reasonable attorneys' fees. Absent these bases, there is generally no basis to recover attorneys' fees. However, there is a vehicle under...