While Code of Civil Procedure section 998 was conceived and implemented to promote settlement and judicial economy, defendants frequently abuse this procedure by making no more than a token or bad faith offer, for little or even no money or perhaps a mutual waiver of costs. Defendant’s transparent motive is simply to set plaintiffs up so that they can collect defense expert costs if the matter is lost by plaintiff at trial.

A token offer results in a zero sum game for plaintiffs: They must either accept a settlement offer for zero dollars or risk losing at trial and paying defense expert costs, which can be considerable.

Recently, we have been successful in arguing that these token offers violate the policy behind Section 998, are therefore void and do not entitle defendants to expert costs.