As you personal injury trial date nears, things get heated up on the defense and plaintiff side. Usually both sides have asked and answered their questions to one another via the "discovery process," and you have attempted to settle the case through the voluntary mediation process only to find out both sides could not reach an amicable resolution. Maybe you have already attended a Defense Medical Exam to boot. You and your personal injury lawyer have come to the "crossroads of making a very important decision," preparing your case for jury trial.
By this time, risk starts to go up - and the defense gets antzy wanting to know if a settlement is possible. This is the perfect time to deploy CCP Section 998 in your personal injury case.
How Do You Use CCP Section 998?
Both the defense and plaintiff can make an offer under this Code Section. Your lawyer makes a written settlement offer utilizing the language of CCP Section 998 with the following guidelines:
1. The settlement offer must "your low-end number," meaning it is the number your lawyer can more than likely attain a trial, at the minimum, but it must also be high enough where you would be happy if the defense accepted. So, the valuation rests somewhere between a low and high amount that you would still be happy with in your particular injury case. This is a very important conversation with your injury lawyer when coming up with this "special dollar amount."
2. The defense has 30 days to accept or reject. After 30 days, it expires and is considered a "rejection."
3. Now, if the case then proceeds to jury trial and the jury gives you in their verdict a penny more than your CCP Section 998 offer, then you have "beaten your CCP Section 998 offer," and now, in addition to your regular court costs as the prevailing party, you can now obtain your plaintiff expert witness fees (your doctors and other experts like collison-enactment engineers), which can be quite expensive, and interest at 10% since the Section 998 offer was rejected, which can also be quite expensive.
Ramifications in Deploying a CCP Section 998 Offer:
This will definitely give the defense a "pause moment" to really consider your position. Afterall, the defense does not want to be hit with your plaintiff's verdict, and then get hit with your expensive expert witness fees and interest on top. However, likewise, keep in mind, the defense can deploy their own CCP Section 998 offer to you, and if you do not beat their offer at trial, you would be responsible for defense expert witness fees and interest as well. It is a two-way street.
Yet, here is the legal strategy and opportunity: If you place the right number for your CCP Section 998 offer at the right time, for the right reasons, it can add tremendous pressure to the defense. Especially if you are dealing with policy limits on the injury case. It turns up the heat, if you will, and can usually effectuate a settlement deal.
You see? Defense insurance companies are "risk perceivers." Their needle of value in your case moves up when they perceive risk. Therefore, it all comes down to the timing of deploying the powerful "secret legal weapon" in order to create smart decisions on your personal injury.
Which is why you need an experienced personal injury lawyer on your side. I am talking about an injury that has trial experience, not just settlement experience. Well, I have got both - I have been to jury trial, and you need to make sure your lawyer has both.
Now, if you still have questions on this interesting topic, you can always contact me anytime. I make myself available to questions like these every single day and I can be reached at 619.813.7955. I would be happy to see if I could help you out in your particular situation.
Stay strong, Attorney Mark
