Even a Modest 998 Offer Is Sustainable If Defense Is Strong.
Welch v. Kemp, Case No. H041311 (6th Dist. Nov. 23, 2015) (unpublished) is a situation where a defendant attorney won a legal malpractice action against plaintiff ex-client, after having denied liability throughout the case and after plaintiff rejected a 998 offer to have the defense waive costs if she dismissed the lawsuit. The trial court then awarded all of the claimed costs of $19,067.87 ($15,520 of which were expert witness fees, because expert witness testimony is par for the course in most legal malpractice cases on many issues but especially the standard of care substantive element).
Plaintiff’s appeal, claiming the 998 offer was token and in bad faith, was unsuccessful. The appellate court agreed with the lower court’s assessment that the modest 998 offer had value to plaintiff given the potential exposure for over $19,000 in costs if the case was lost—as it was. Defendant had denied liability throughout the case, with even a modest offer of only waiving costs in hindsight being deemed reasonable where the defendant had strong defenses. (Colbaugh v. Hartline, 29 Cal.App.4th 1516, 1528-1529 (1994).)