If a 998 offer is accepted for settlement and judgment is awaiting to be entered, can the offerer of the 998 still take the case to trial or request a motion (for summary judgment or to dismiss, e.g.) if new evidence became available that would strengthen the offerer's case?
Answer
No. Once the other side has accepted, the 998 offer is binding. If the offeror tries to back out, the court won't let him. There may be an exception if the offering party made the offer because of fraud by the accepting party. But merely discovering new evidence would not be enough.
Answer
If people could back out because they found new information [why did they make the offer without first trying to get that evidence] then people would do so much of the time. The defense normally offers somewhat more than they want to to protect themselves against a higher verdict then they think should occur, and if they could then back out and make a lower 998 offer to see how low an offer the other side would accept, there would be an endless number of 998's in the same case.
Answer
Mr. Hoffman is correct in his assessment.
BARRY BESSER
www.besserlaw.com
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