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The Injustice of 998 Offers in California

A Deeper Look into Their Unfair Impact on Plaintiffs


In California, the legal system employs a mechanism known as the “998 offer” to encourage settlement negotiations and reduce the burden on the courts. While this tool may have good intentions, it often ends up being unfair to plaintiffs involved in civil cases. A 998 offer enables defendants to propose settlements to plaintiffs, under the condition that if the plaintiff declines the offer and doesn’t secure a better verdict at trial, they might be liable for some expenses the defendant incurred during the lawsuit.

In theory, this approach promotes settlement and cost-effectiveness. But in practice, it can be a significant disadvantage for plaintiffs. This article will delve into the reasons why 998 offers tend to be unjust to plaintiffs in California.

Asymmetric Bargaining Power

One of the fundamental issues with 998 offers is the imbalance of bargaining power between plaintiffs and defendants.

Defendants, particularly corporations and insurance companies, have lots of money and lawyers, enabling them to craft 998 offers with meticulous precision. Plaintiffs, on the other hand, are typically individuals or smaller entities, lacking the same level of resources and legal expertise.

In our cases, the plaintiff is often a person without any knowledge of the law who was injured in a bicycle accident. The defendant, on the other hand, may be a corporation. Or, the defendant is a driver whose auto insurance is paying for their lawyer and helping shield them from the stress and cost of a lawsuit.

A good personal injury lawyer will guide a plaintiff through the legal process. But the lawyer is not financially responsible for the defendants costs if the plaintiff fails to beat a 998 offer.

This power asymmetry puts plaintiffs in a vulnerable position. Plaintiffs may feel pressured to accept unfair settlements instead of going to trial. They may also have to pay high costs if they choose to go to trial.

Pressure to Settle for Less Than Deserved

998 offers can create an environment where plaintiffs feel pressured to accept inadequate settlement amounts. Defendants may strategically make low-ball settlement offers, exploiting the fear of incurring substantial costs if the plaintiff declines the offer and fails to obtain a better outcome at trial. As a result, plaintiffs may be inclined to settle for less than the full value of their claim, undermining justice.

Chilling Effect on Access to Justice

The looming prospect of facing significant costs if a 998 offer is rejected can deter deserving plaintiffs from pursuing legitimate claims altogether. The fear of financial ruin discourages individuals and small businesses from seeking recourse through the legal system, thereby denying them access to justice.

This chilling effect limits the enforcement of civil rights, prevents accountability for wrongdoing, and undermines the core principles of a fair and accessible legal system.

Unintended Consequences on Trial Outcomes

The existence of 998 offers can influence litigation strategy and trial dynamics in undesirable ways. Plaintiffs may feel compelled to take a cautious approach, focusing on minimizing potential costs rather than vigorously pursuing their case. On the other hand, defendants may become emboldened to take a more aggressive stance, knowing that plaintiffs face the risk of significant financial penalties if they do not secure a more favorable outcome at trial. Consequently, the quality and fairness of trial outcomes may be compromised, with the focus shifting from the merits of the case to tactical considerations.

Disproportionate Impact on Low-Income Plaintiffs

The unfairness of 998 offers is especially acute for low-income plaintiffs who lack the financial means to bear the burden of potential adverse costs. While defendants may be capable of absorbing such costs with relative ease, plaintiffs from disadvantaged backgrounds may find themselves facing severe financial hardships if they lose at trial after rejecting a 998 offer. This creates a systemic disadvantage for vulnerable populations seeking justice through the legal system.


While the intention behind 998 offers in California is to promote settlement and reduce litigation costs, their implementation often leads to unjust outcomes for plaintiffs in personal injury cases. The imbalance of bargaining power, pressure to settle for less, chilling effect on access to justice, unintended consequences on trial outcomes, and the disproportionate impact on low-income plaintiffs collectively highlight the unfairness of 998 offers.

To address these issues, lawmakers and the legal community should critically evaluate the impact of 998 offers and consider measures that ensure a more equitable and accessible legal system for all parties involved.