In a recent Daily Journal article, “Early 998 Offers: Wicked Weapon or Wise Tactic?,” partner Gary A. Watt compares 998 offers to the stick in a carrot and stick analogy. According to Gary, “the stick is comprised of fee shifting to the offeror if the offeree rejects a 998 offer and ‘fails to obtain a more favorable judgment or award.’”

While plaintiffs may have a “built-in incentive to make 998 offers early in a case” the validity of serving 998 offers with a complaint is dependant on whether such offers are “reasonable and made in good faith.” Watt goes on to use Najera v. Huerta as an example of an invalid 998 offer served with the complaint and compares it to Barba v. Perez where such an offer was successful.

In the end, Gary asserts that “service of a 998 offer with a complaint will seldom be well taken by defendants,” and “if plaintiffs’ counsel fails to provide sufficient information or accommodate requests for time to evaluate the offer,” the 998 offer served with a complaint will be found unreasonable and lacking good faith, rendering it invalid.

Gary frequently blogs about appellate issues at www.caappellatelaw.com. Recent posts include:

• Houston
• Wrinkles
• Word Wars

This article was originally published in the Daily Journal and subscription-based Daily Journal website at www.dailyjournal.com.