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Joint proposal for settlement article.

Raymond L. Robin's article on "What is Left of the Joint Proposal for Settlement" (February) made a clear case that while [section]768.79 and Rule 1.442 were intended to reduce litigation, they have instead served to create more litigation. It can also be said that the rule has served to unfairly increase the risk of litigation.

The rule of unintended consequences has prevailed. Rather than awarding fees to those who in good faith offer a clearly reasonable settlement against those who refuse a clearly reasonable offer, the rule has morphed into "penalizing those who decline offers that satisfy the statutory requirements." Reasonable and fair-minded litigants who turn down seemingly unreasonable proposals are penalized when unexpected verdicts "satisfy the statutory requirements." Given the inherent uncertainty of trials, it can hardly be argued that such persons should be so penalized.

The rule rewards litigants for making no-risk, unreasonable offers. For example, a defendant may make a low-ball offer of, say $1, that unexpectedly turns out to "satisfy the statutory requirements." The defendant has no meaningful risk in making an offer of no meaningful consequence, but woe unto the plaintiff who reasonably declines and is then subjected to a no-liability verdict. On the other hand, the plaintiff has no ability to make a low-ball offer unless he/she is willing to live with it should the defendant accept it. In this context, the rule clearly and unfairly favors the defense.

We need a significant change and I would argue that the best choice is to do away with the rule entirely. (Penalties in place for frivolous claims and defenses should suffice.) If not that, then make the effect of the proposal reciprocal. For example, if the defendant offers to settle for $1 and the verdict is less than $0.75, then the defendant gets his fees; but if, on the other hand, the verdict is more than $1.25, the defendant pays the plaintiff's fees. Defendants who are certain they are defending a no-liability case will still have an ability to recover fees, but if they are wrong, they will have to pay the plaintiff's fees. Likewise, if a plaintiff makes a high proposal and the verdict is 25 percent less than the proposed amount, the plaintiff can pay fees to the defendant. Let's make upping the ante apply fairly to both sides.

R. BARRY MORGAN, Winter Park

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Title Annotation:Letters
Author:Morgan, R. Barry
Publication:Florida Bar Journal
Article Type:Letter to the editor
Date:Apr 1, 2011
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