Most Georgia litigants know that attorney’s fees can sometimes be recovered under O.C.G.A. Section 9-15-14 for frivolous claims or under 13-6-11 for bad faith. Fewer appreciate that O.C.G.A. Section 9-11-68 creates a separate, mandatory fee-shifting mechanism tied not to bad conduct but to the reasonableness of a settlement decision. Get the math wrong on a rejected offer, and a party who wins at trial can still walk out owing the other side’s post-rejection attorney’s fees and litigation costs. Understanding how the statute works ‚Äî and how to use it ‚Äî is now a core component of Georgia tort litigation strategy.
Scope and Applicability
Section 9-11-68 applies to tort claims only. It does not apply to contract disputes, equity cases, or other civil actions. Either party — plaintiff or defendant — may make an offer under the statute. The offer may be made at any time more than 30 days after service of the summons and complaint on a party, but no later than 30 days before trial. A counteroffer must be made at least 20 days before trial. A party may make as many offers as it wishes during the litigation window.
The Eight Formal Requirements
A defective offer triggers no fee-shifting consequences ‚Äî it is a nullity. Under 9-11-68(a), a qualifying offer must be in writing; state with particularity all amounts proposed to settle all claims, including any punitive damages claim; state whether the proposal includes attorney’s fees or other expenses; include a certificate of service; and be served by certified mail or statutory overnight delivery. The offer must not be filed with the court. It must remain open for 30 days after service. A counteroffer does not extend the original offer ‚Äî the original expires when the counteroffer is made.
Courts have strictly enforced these requirements. An offer served by regular mail does not qualify. An offer that fails to address punitive damages where such a claim is pending is defective. A formal defect means fee-shifting is unavailable regardless of the trial outcome.
The Fee-Shifting Thresholds
The fee consequences depend on who made the offer and what the jury returns.
When a defendant makes the offer and the plaintiff rejects it: the defendant is entitled to recover its reasonable attorney’s fees and litigation expenses from the date of rejection through entry of judgment if the final judgment is either a defense verdict (no liability) or a plaintiff’s recovery of less than 75 percent of the defendant’s offer. If the defendant offered $100,000 and the plaintiff rejected it, the plaintiff must recover at least $75,000 at trial to avoid fee exposure. A verdict of $74,999 triggers mandatory fee-shifting against the plaintiff.
When a plaintiff makes the offer and the defendant rejects it: the plaintiff is entitled to recover its reasonable attorney’s fees and litigation expenses from the date of rejection through entry of judgment if the plaintiff’s final judgment exceeds 125 percent of the plaintiff’s offer. If the plaintiff offered to settle for $100,000 and the defendant rejected it, a verdict of $125,001 or more triggers mandatory fee-shifting against the defendant.
The Award Is Mandatory
Once the statutory threshold is met and the offer satisfied all formal requirements, the fee award is mandatory. The trial court has no discretion to reduce or deny it based on equitable considerations or any assessment of whether the rejecting party acted reasonably. The statute’s purpose is to create a concrete financial consequence for rejecting an offer that turned out to be reasonable ‚Äî second-guessing that consequence after the fact undermines the incentive structure.
The one exception is a good faith challenge. Under 9-11-68(d), a court may find that an offer was not made in good faith and disallow the fee award. Offers made at amounts so low as to be purely tactical ‚Äî designed to trigger the statute rather than genuinely resolve the dispute ‚Äî are the most common targets. Courts examine the totality of circumstances at the time the offer was made, including the strength of the offeror’s case, the damages at issue, and information exchanged in discovery.
Strategic Implications
For defendants, the offer of settlement statute creates leverage that standard settlement negotiations do not. A defendant with a defensible case who makes a precise, formally compliant offer early in litigation shifts the risk calculation for the plaintiff. A plaintiff who rejects a $200,000 offer and recovers $140,000 at trial ‚Äî a meaningful verdict ‚Äî nonetheless owes the defendant’s fees from the rejection date forward. Depending on how long the case runs, those fees can approach or exceed the recovery itself.
For plaintiffs, the statute creates symmetric pressure in the right case. A plaintiff who has strong liability facts and credible damages can make an offer early, force the defendant to evaluate it seriously, and position the case for a post-rejection fee award if the defendant undervalues the claim.
The statute covers expenses of litigation as well as attorney’s fees ‚Äî costs such as expert witness fees, deposition expenses, and court reporter charges all qualify. In complex cases with substantial expert testimony, the expense component alone can be significant.
Disclaimer
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