Creditor’s Rights – Commercial Law World Magazine
Synopsis of Gil Singer’s Article Distinction Between Offers and Demands:
In the article “Offers and Demands for Judgment” by Gilbert M. Singer, the focus is on a legal mechanism used within the Florida legal system, though the principles are generally applicable in other jurisdictions as well. This mechanism, governed by Fla. R. Civ. P. 1.442 and Fla. Stat. 768.79, allows parties involved in litigation (both plaintiffs and defendants) to make formal offers or demands for judgment in an attempt to settle disputes before they reach trial. The essential points from Singer’s discussion include:
Distinction Between Offers and Demands:
Defendants make Offers for Judgment, while Plaintiffs make Demands for Judgment. These terms essentially serve the same purpose but are initiated by different parties in a legal dispute.
Written Requirements:
These offers or demands must be written, clearly stating the law, supporting facts, and specific terms of the settlement, including any monetary amounts or other conditions.
Time-sensitive Nature:
Once made, the opposing party has 30 days to accept the offer or demand. Failing to respond is considered a rejection. The offer can also be withdrawn by the initiating party before acceptance.
Strategic Implications for Attorney’s Fees:
A critical aspect of these offers and demands is the potential impact on attorney’s fees. If a plaintiff’s demand is not accepted and they recover 125% or more of the offer amount, the defendant may be liable for the plaintiff’s attorney’s fees. Conversely, if a defendant’s offer is not accepted and the plaintiff fails to recover at least 75% of that offer, the plaintiff might have to pay the defendant’s attorney’s fees.
Public Record:
Unlike most other settlement approaches, both the offer and acceptance are filed with the court, making them part of the public record. This transparency can influence the decision-making process for both parties.
Strategic Use:
Parties can use these mechanisms strategically to put pressure on the opposing side. For example, a plaintiff may demand a slightly higher amount to encourage settlement, knowing that if the defendant doesn’t accept and the judgment exceeds a certain threshold, it will incur additional costs.
Consideration Required:
Accepting or making an offer or demand for judgment requires careful evaluation of the case’s value and the strengths of the evidence available. Misjudgments can lead to significant financial implications due to the attorney’s fees clause.
Gil Singer’s article highlights the importance of Offers and Demands for Judgment as tools for legal professionals to strategically navigate settlements and possibly avoid lengthy trial processes. This mechanism encourages both parties to realistically evaluate their positions and the strength of their cases, promoting settlements that are fair and in line with the anticipated outcomes of litigation.