The Perils of Pauline … and the 998 offer that failed to mention attorney fees

Where else but a judicial opinion can you find references to both Refer Madness and the Perils of Pauline in the same sentence?  Today’s example comes from the decision in Engle v. Copenbarger and Copenbarger:

Cautionary tales rarely have happy endings. From the 19th Century German classic, “The Dreadful Story of Pauline and the Matches,” in which the fate of the child heroine can be deduced from the title, to the more familiar Thirties cult film, “Reefer Madness,” the protagonist almost never does well in them. This case is no exception. We present here a cautionary tale, published, like all of its ilk, in the hope of providing a warning.

The issue in the case is whether a plaintiff who accepts a Section 998 offer in exchange for “a release and discharge of all claims” but which is otherwise silent on the question of attorney fees may nonetheless apply to the court for an award of fees and costs.

The court ruled that a plaintiff who accepts a 998 offer “is entitled to fees and costs unless they are excluded by the offer.”  This, the court says, is a “bright-line rule” meant to resolve situations precisely as that before the court where there is a question as to whether the 998 offer included or excluded fees.

The lesson — make the offer very precise.

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