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Perfecting Proposals for Settlement

October 6, 2020 | Thomas L. Hunker

In addition to briefing and arguing appeals, CSK’s Appellate Practice Group routinely provides litigation support at the trial level including formulation of defense strategy, handling dispositive motions, and providing appellate support at trial. The Appellate Group also serves as a consulting resource to CSK’s clients and trial attorneys by assisting with legal research and providing answers to difficult legal questions. In particular, the Appellate Group analyzes draft proposals for settlement and offers of judgment to ensure compliance with section 768.79, Florida Statutes, Florida Rule of Civil Procedure 1.442, and Federal Rule of Civil Procedure 68.

The requirements for a valid proposal for settlement are strict, and a mistake could result in the court
denying a claim for attorneys’ fees. The following is a non-exhaustive list of important points to keep in
mind when drafting a proposal for settlement:

Damages Only. The proposal must resolve all claims for damages between the offeror and offeree that may be awarded in a final judgment.

No Equitable Claims. The language of the proposal must not be so broad that it could be interpreted as attempting to resolve equitable claims.

Claims at Issue. The proposal cannot purport to extinguish other claims between the parties that are not part of the litigation.

No Joint Proposals. Joint proposals requiring acceptance by multiple offerees are invalid because each offeree must be able to independently accept. Instead, separate proposals should be sent to each offeree.

Apportionment. The amount offered must be apportioned among multiple offerors. However, apportionment is not required in cases where the complaint alleges that one defendant-offeror is “solely” vicariously liable for the fault of the other.

Avoid Ambiguities. Although courts frequently reject “nit picking” arguments about ambiguous proposal language, courts often invalidate proposals based on ambiguities that would reasonably affect the offeree’s ability to evaluate whether to accept or reject the proposal.

Releases. If the proposal asks for a release, the proposed release language must not create ambiguities. It must also be specific to the damages at issue and must not purport to extinguish equitable claims or claims that are not part of the litigation.

The foregoing points are a few basic guidelines and are not intended as legal advice for any particular case. The law in this area is vast, and there are many exceptions to the rules that must be considered based on each scenario. Accordingly, it is important to consult with an attorney experienced in the area of proposals for settlement to ensure compliance with the statute, rules, and case law.

Our team is available to discuss the topics written here and ready to provide additional information contained in this article. Contact us for more information.

About the author

Thomas L. Hunker


Mr. Hunker is a partner in the Fort Lauderdale East Office. He is a Board Certified Specialist in Appellate Practice and serves on the Florida Bar Appellate Board Certification Committee. Mr. Hunker has extensive experience at the appellate and trial[...] Read more

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