Recovering for Trial Expenses and Expert Fees

What is the California law that covers recovering for trial expenses and expert fees?

A recent case addresses a somewhat technical/obscure issue, but it is an issue frequently involved in lawsuits for personal injuries. Often in these cases, a defendant will make a formal offer to settle, called a 998 offer. This is a “statutory offer”. It places an incentive on the other party to accept the offer, because if not accepted, and the Defendant does better at trial, or if the offer is made by the plaintiff, and the plaintiff does better at trial, then the other side has to pay some consequences including a plaintiff recovering for trial expenses and expert fees.

For example, the side that did not do better at trial, may have to pay the costs and expert fees that were incurred by the other side. This may not seem like much, but expert fees, even in small cases, can add up to thousands of dollars.

In this case, Farag vs. ArvinMeritor, Inc. (2012), the defendant offered the two plaintiffs (husband and wife), jointly, the sum of one penny. The defendant simply felt that the plaintiffs had no case. The defendant was correct, and the jury found in favor of the Defendant. Therefore, the defendant did better at trial than the offer that was made in the form of the 998.

What was a bit unusual in this case was the fact that it was a joint offer, as opposed to a separate offer to each party. Normally, the offers are to separate parties. In this case the plaintiffs objected to the 998, after the verdict, arguing that joint offers are not valid. In general, if it is a joint offer made to multiple parties, it is not valid, but here since it was made to a husband and wife, it was considered valid, primarily because of the community property aspects of the situation.

In addition, the court held that since the two plaintiffs did not object to it being joint at the time it was made, the plaintiffs therefore waived their right to object.