Just as the plaintiffs’ personal injury bar will often bemoan the conduct of defendants, insurers and “file-churning” defense attorneys who needlessly delay the negotiation of clear liability claims, those who defend claims under fee-shifting statutes are often frustrated by an adversary’s refusal to articulate a reasonable settlement demand before engaging in extensive discovery. In such instances, litigation under fee-shifting statutes may be characterized as “fee-driven,” since the plaintiff’s attorney will have a financial interest in “working up” the file in pursuit??of a larger settlement and thus a larger fee.
In certain cases a litigant or attorney may have good reason not to negotiate early. In those cases where the delay is unjustified, however, the filing of an offer of judgment can be a powerful negotiating tool.
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