April 29, 2011
About a year ago, I attended a pretrial conference for a particularly sad case. A drunk driver killed my client’s child. My client wanted justice in the form of a jury verdict and the defendant wanted to get out of the matter for his insurance policy limits of $25,000.00. While at the pretrial with the judge, one of the defense lawyers stated that they were willing to make an offer of judgment of $500,000. Of course, my client would never be able collect it because the defendant was now in the custody of the Mississippi Department of Corrections. My client refused the offer and stated that she wished to receive a jury verdict.
The judge was noticeably upset and went into a little tirade about wasting his time. He then proceeded to tell me that since the defendant was making the offer of judgment, he would award costs and attorneys’ fees to the defendant if the jury verdict came back for $1 less than the offer of judgment.
After he had said his piece, I responded that attorneys’ fees were not authorized under Rule 68. This really lit a fire under the judge and I received the immediate response of “Mr. Wallace, I know the law. You don’t have to explain it to me.” My client didn’t budge.
This week the Mississippi Court of Appeals had the opportunity to define exactly what costs are available under Rule 68 in the case of Hubbard v. Delta Sanitation of Mississippi, 2010-CA-00045-COA. Suffice it to say, attorneys’ fees are not included in “costs” under Rule 68. Neither are expert fees (only witness fee of $1.50 per day and 5 cents per mile), depositions, printing, copying, or court reporters. For the most part, Rule 68 is a tiger with no teeth.