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Many Florida attorneys have the following concerns about the Proposal for Settlement statute (section 768.79) and Rule 1.442 of the Florida Rules of Civil Procedure:

Not evaluating cases on the merits. Because of the threat of an adverse fee and cost judgment pursuant to the Proposal for Settlement statute, many attorneys feel that the statute causes litigants to settle a case without fully taking into consideration the merits of their case.

Amounts owed under the statute are often uncollectible. Even if there is a ruling in favor of a litigant for attorney’s fees and costs under the statute from the opposing party, many attorneys have found that the opposing party does not have the assets from which to collect the judgment.

The amount of litigation in Florida courts has seemingly not decreased.

  • Supreme Court of Florida - "The expected result of the attorneys' fee sanction was to reduce litigation costs and conserve judicial resources by encouraging the settlement of legal actions. See Sarkis v. Allstate Ins. Co., 863 So.2d 210, 218 (Fla.2003). The effect, however, has been in sharp contrast to the intended outcome because the statute and rule have seemingly increased litigation as parties dispute the respective validity and enforceability of these offers." Attorneys' Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 650 (Fla. 2010).
  • Florida Supreme Court Justice Pariente - "Over the years I have expressed concern about whether either [rule 1.442] or [section 768.79, Florida Statutes] is fulfilling its intended purpose of encouraging settlement or at times is having the opposite effect of increasing litigation." Campbell v. Goldman, 959 So.2d 223, 227 (Fla. 2007) (Pariente, J., concurring).
  • The Fourth District Court of Appeals: "We regret that this case is just one more example of the offer of judgment statute causing a proliferation of litigation, rather than fostering its primary goal to `terminate all claims, end disputes, and obviate the need for further intervention of the judicial process.'" Security Professionals, Inc. v. Segall, 685 So. 2d 1381, 1384 (Fla. 4th DCA 1997).

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