Generally a party that prevails at trial in car crash injury claim is entitled to recover its costs and disbursements in addition to the damages awarded. A “Rule 68” offer is a rule of civil procedure that changes the definition of the prevailing party and can result in shifting the responsibility to pay costs and disbursement. Generally the plaintiff is the prevailing party if the jury award results in the plaintiff being awarded damages against the defendant. The defendant is the prevailing party if the jury finds in favor of the defendant and no damages are awarded to the plaintiff.
Certain out-of pocket expenses paid during litigation are considered costs and disbursements. These include filing fees paid to the clerk of court, witness expenses including subpoena fees and witness fees for depositions and trial, the cost of preparing exhibits, deposition fees and expert witness fees. Every case is different and the total amount of the costs and disbursements will depend on the number of depositions that are taken and whether expert witnesses are required. The cost of taking one deposition may be between $700 to $1000. Expert witnesses can be very expensive. It is standard procedure for an insurance company in a personal injury case to hire an expert witness to perform an adverse medical examination on the plaintiff. The adverse medical examiner may charge $3000 to $4000 to conduct the exam. Later it may be necessary to take the adverse medical examiner’s deposition. The adverse medical examiner will normally charge an additional $2000 to $3000 for his deposition. Even in a relatively uncomplicated motor vehicle crash personal injury case where the defendant hires an adverse medical examiner and 2 -3 other depositions are taken, the defendant will have litigation costs and disbursements that may exceed $7000. Litigation costs and disbursements for the plaintiff in the same case may only be $1000 to $1500. Every case is different and these estimates are for illustration only.
The “Rule 68” offer changes the definition of prevailing party. After a “Rule 68” offer is made, the plaintiff must recover more than the amount of the “Rule 68” offer to be considered the prevailing party for all costs and disbursements incurred after the “Rule 68” offer was made.
The “Rule 68” offer does not change the damages that the plaintiff is entitled to recover based on the jury verdict, but the damages may be reduced by the litigation costs and disbursements that are awarded to the defendant and if the defendant’s litigation costs and disbursements are larger than the jury’s award, the plaintiff may end up owing money to the defendant.