Offers Of Judgment: An Assault On The Civil Justice System

In Georgia there is a bad law on the books that was passed by the Republican dominated Legislature as part of its so-called effort at “tort reform.” We refer here to the provisions of O.C.G.A. § 9-11-68, the Georgia Offer Of Judgment statute. This statute provides that a party may make an offer of judgment to another party in a pending case in which the offering party agrees to settle the case for a specified sum. Thereafter, if the party to whom the offer is made fails to settle for the offer and later fails to obtain an award of at least seventy-five percent (75%) of the amount of the offer, then the party making the offer of judgment may petition the court for payment of its attorney’s fees from the date the offer was made until the less favorable award or loss.
A hypothetical might provide a good example of why this is such a bad law. Suppose a middle class person files a lawsuit against a rich corporate defendant with silk stocking lawyers paid by an insurance company our through other corporate monies. An offer of judgment is made by the wealthy defendant against the middle class person. If the middle class person does not obtain a verdict in excess of seventy-five percent (75%) of the amount of the offer, that middle class person may be on the hook under this new law for the payment of the attorney’s fees of the silk stocking lawyers – even if they win their case (but especially if they lose the case).
Many Washington, D.C., New York law firms and firms in Atlanta charge anywhere between six to eight hundred dollars an hour ($600. – $800.) for their “silk stocking services.” While such fees are outrageous from the standpoint of any middle class person, corporations routinely pay these fees because corporations have the funds to do so. Thus a middle class person who is trying to assert their legal rights in any litigation runs the risk of having all their assets seized by these silk stocking corporation lawyers if they do not prevail in civil litigation. Thus, the middle class person is being forced to settle the case rather than run the risk of presenting his or her case to a trial by jury.

A trial by jury is a sacrosanct constitutional right. This state law provision may very well be unconstitutional under federal law but unfortunately the Georgia Supreme Court has held that it is constitutional under state law. Thus, we have a provision under Georgia law where middle class people have to place their entire assets at risk in order to have a constitutionally guaranteed trial by jury. This is a terrible law and the implications are obvious. Corporations can afford to run the risk because they can afford to pay such offers of judgment if they do not win, whereas, citizens on the lower end of the economic scale cannot afford to do so without risking everything they have. This is not right. This is wrong. This “un-American” law should be repealed. This is not in keeping with the right to trial by jury. It discourages access to the Courts and permits only the wealthy to have unencumbered access.

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