The Florida Supreme Court in November made a notable change to Florida’s proposal for settlement rule, generally gutting the ability of a party to serve a partial proposal for settlement. The new rule invalidates partial proposals for settlement served after Jan. 1—unless the proposal is only partial in that it expressly excludes attorney’s fees. While partial proposals may have been a creative tool in the past for multi-count complaints, a Florida litigant’s use of this strategy now may run afoul of the Supreme Court’s modified Rule 1.442.
In terms of background, a proposal for settlement is not merely an offer to settle. It is a formal litigation tool with strict guidelines. Designed to make litigation shorter and less costly, it punishes those who fail to settle when a reasonable dollar offer has been made. Specifically, Florida litigants may, as a result of a proposal for settlement, obtain a post-trial sanction of attorney’s fees against the other party. The sanction is available if the other party unreasonably failed to settle before trial, which is determined by calculations after trial concludes. A party unreasonably failed to settle if such party did not accept a pretrial proposal for settlement that the proposing party later “beat” by 25 percent or more at trial.
