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« Civil Code Section 1717: Broadly Worded Clause In Attorney Fee Retainer Resulted In Substantial Fee Award In Malpractice Action To Prevailing Client | Main | Eminent Domain: Condemnees Not Entitled To Award Of Litigation Expenses Where Pretrial Compensation Demand Included Fees And Condemnor's Final Offer Was Within 83% Of Jury's Valuation Award »

December 23, 2008



Our reply is that Sonoma Risk believes it has built in incentives to avoid
frivolous suits. It is available to both plaintiffs and defendants, so that the
defense insurance is actually available to allow litigants to defend against
unreasonable suits. Also, if a CCP section 998 offer is made, the insured party
has to carefully assess settlement because it will not be allowed postoffer
costs if it gambles and loses. CCP section 128.7 sanctions are not recoverable
either. As far as the 90-day argument, we do not see the state action that is
involved on a constitutional basis. However, we thank the reader for his post
and would refer you to Sonoma Risk's website so that you can make up your mind
one way or the other -- maybe even agreeing with the reader's critical post.

F. Smith

I've been a U.S. trial lawyer over 25 years, admitted both in New York and California.

I don't get it. What's the point, what's the incentive against "frivolous" litigation if you can purchase inexpensive insurance to pay the winner's legal fees? The only change is that insurance companies have found yet another way to make money.

By the way, the 90-day rule is unconstitutional. It deprives litigants of their right to jury trial based on financial ability.

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