Offers Of Judgment In Georgia: A Bad Example Of Tort Reform

Most members of the public do not know how so-called “tort reform” serves to undermine basic liberties when it comes to our civil judicial system. One of the best examples of this is a little known law which serves to impede access to our courts. This is the “Offer of Judgment” statute which was passed by the Republican controlled Georgia Legislature, codified at O.C.G.A. § 9-11-68. Simply stated, if you are a middle class person and you wish to litigate a civil case, if you should do so and should receive “an offer of judgment” from the person or company you sue, you could be jeopardizing your family, your career, your home and every asset you own. Do the people in Georgia really appreciate what this law means and how it could affect them in the event they ever get into a good faith civil dispute with a third party? The answer is “No” as the public by in large never knows about such laws until and unless they are directly confronted by them – and by then it is too late to do anything about it.
The offer of judgment statute provides that if a civil litigant is sent an offer of judgment by a civil defendant and they refuse to accept it then they can be held liable for the other party’s attorneys fees and expenses. As an example, let us suppose that an average citizen in Georgia has a tort claim against a huge corporation. They file a lawsuit in good faith with representation of counsel. They then receive an offer of judgment from the large corporation. The offer of judgment could be for 50% of the value of their claim. However, if the citizen does not obtain 25% more from a jury than the offer of judgment then they will be held liable for the corporation’s legal expenses. Thus, if a corporation should run up legal expenses through their expensive lawyers in the amount of $250,000.00, $500,000.00 or even a million dollars, if the citizen should obtain a judgment which is less than the offer of judgment, then they will have to pay the attorneys’ fees to the corporation even if they win their case. Obviously, this is a terrible law which was designed to force those with less resources to accept settlements less than the total value of their case. This saves big business money by way of litigation expenses and otherwise but attempts to force the small average citizen to take less than their claim may be worth, otherwise they may risk financial suicide.
In a tort case, let’s say a large trucking company severely injures an innocent victim. During the litigation the trucking company makes an offer of judgment to pay the injured individual $500,000.00 for their broken legs, arms and other bodily injuries. If a jury should return a later verdict of $295,000.00 then, in that event, the innocent injured victim will have to pay attorney’s fees to the person who injured them because they did not get a judgment more than the offer. This can happen for a variety of reasons. A member of the jury could have been extremely conservative or even affiliated somehow directly or indirectly with the trucking company. Counsel for the victim may have underestimated problems with the case, may have misvalued the case, or failed to present all available evidence. Or there simply could have been a result which was not just and which did not award the victim a greater amount due to the makeup of the jury. Under any of these scenarios, the innocent victim is further victimized by the trucking company because the victim would then have to pay the legal expenses of the trucking company, even though they won the case. The offer of judgment statute is a terrible law. It forces people to take settlements or otherwise face financial ruin if they make the wrong decision. Large corporations and large businesses can afford to run the risk because they can afford the adverse consequences whereas the average citizen cannot. This is why the law is so unfair and truly is a denial of equal protection under the laws. At present, however, the law has been upheld by our courts.
This is but a bad single example of “tort reform.” While those that passed this law may have been trying to reduce the expenses to business, nonetheless, the impact on the innocent is very severe and should not be allowed. We continue to say that tort reform in reality is tort “deform” which tilts the scales of justice decidedly in favor of big business and against the average citizen. Because the average citizen is not a “special interest group,” the special interests are able to pass these laws to protect their pocketbooks while at the same time taking away important legal rights from the average man in the street. This is not fair and is bad law. This also proves that elections are important. Citizens should vote for legislators which will protect their civil rights. Yes – we need to be sensitive to the legitimate interests of business groups – but this does not mean we should pass bad laws that favor special interest groups over average citizens.