University of North Dakota SOL; Grand Forks ND
The practice of serving private clients in civil litigation is certainly results oriented. In order to best serve our clients, we strive to be effective. On the practical side, we must also be efficient. The balance between these twin goals of effectiveness and efficiency should be kept in mind at all times. As much as we wish otherwise, no one has infinite time or resources.
A specific practical question has arisen more recently as to whether a plaintiff in a civil employment litigation matter involving claims of violation of the Fair Employment and Housing Act (FEHA) should bother serving a Code of Civil Procedure §998 offer to compromise. As a matter of law, Government Code §12965(c)(6) permits a prevailing plaintiff in a FEHA matter to recover "reasonable attorney's fees and costs, including expert witness fees." Given the state of the law on the issue, serving an offer to compromise might not seem particularly effective or efficient for a plaintiff's counsel.
However, in looking deeper into the fantastically practical uses for an offer to compromise, it still remains an important tool for plaintiffs in FEHA litigation matters for several reasons. It is also significant that a plaintiff is not limited to a single offer to compromise. Strategic reasons exist for employing offers to compromise during litigation of a matter. These include (1) countering an early offer to compromise from defense; (2) establishing a base-line...
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