Loading
State by State Expert Witness Rules
9 min read
Published Date:
Last Modified Date:
California Section 998 offers can significantly affect settlement leverage and post-trial cost exposure, particularly in cases involving substantial expert witness expenses. This article explains how Section 998 cost shifting works for plaintiffs and defendants, when expert fees may be recoverable, what makes an offer valid, and how timing, expert strategy, and litigation costs can influence settlement decisions.
California litigation is not always driven by liability alone. In many cases, the real pressure comes from litigation costs and the financial risk tied to trial. That is one reason California Code of Civil Procedure Section 998 plays such an important role in settlement strategy.
A well-timed Section 998 offer can shift leverage quickly. It can push serious settlement discussions, increase financial pressure before trial, and create the possibility of recovering expert witness costs after the case ends.
That matters because expert-heavy litigation becomes expensive fast. A construction defect case involving engineers, scheduling experts, and damages consultants can generate major costs long before trial begins. The same is true in medical malpractice, catastrophic injury, and business litigation matters where multiple experts are involved.
For attorneys handling complex civil disputes, understanding how Section 998 interacts with expert witness fees is important from the beginning of the case, not just after trial. This article explains how California Section 998 offers work, when expert witness fees may become recoverable, and how litigators often use the statute as part of broader settlement and trial strategy.
Section 998 is designed to encourage settlement before trial or arbitration. The statute allows either side in a lawsuit to serve a formal written settlement offer on the opposing party.
If the offer is rejected and the opposing party later fails to obtain a more favorable result, financial consequences can follow. One of the biggest concerns is the possibility of paying the other side’s post-offer expert witness costs.
In practice, Section 998 becomes especially important in cases involving substantial damages, competing expert opinions, or high litigation costs.
Examples may include:
At its core, Section 998 forces both sides to think seriously about settlement risk before trial.
California litigation is not always driven by liability alone. In many cases, the real pressure comes from litigation costs and the financial risk tied to trial. That is one reason California Code of Civil Procedure Section 998 plays such an important role in settlement strategy.
A well-timed Section 998 offer can shift leverage quickly. It can push serious settlement discussions, increase financial pressure before trial, and create the possibility of recovering expert witness costs after the case ends.
That matters because expert-heavy litigation becomes expensive fast. A construction defect case involving engineers, scheduling experts, and damages consultants can generate major costs long before trial begins. The same is true in medical malpractice, catastrophic injury, and business litigation matters where multiple experts are involved.
For attorneys handling complex civil disputes, understanding how Section 998 interacts with expert witness fees is important from the beginning of the case, not just after trial. This article explains how California Section 998 offers work, when expert witness fees may become recoverable, and how litigators often use the statute as part of broader settlement and trial strategy.
Section 998 is designed to encourage settlement before trial or arbitration. The statute allows either side in a lawsuit to serve a formal written settlement offer on the opposing party.
If the offer is rejected and the opposing party later fails to obtain a more favorable result, financial consequences can follow. One of the biggest concerns is the possibility of paying the other side’s post-offer expert witness costs.
In practice, Section 998 becomes especially important in cases involving substantial damages, competing expert opinions, or high litigation costs.
Examples may include:
At its core, Section 998 forces both sides to think seriously about settlement risk before trial.
Expert witnesses can become one of the largest litigation expenses in a case.
Depending on the dispute, expert-related work may involve:
Those costs add up quickly, especially when several experts are involved.
Under California’s ordinary cost rules, expert witness fees are generally not recoverable unless a statute specifically allows it. Section 998 creates one important exception in qualifying cases.
If a party rejects a valid Section 998 offer and later fails to obtain a better result, the court may order that party to pay certain post-offer expert witness costs incurred by the other side.
That possibility alone can significantly change settlement discussions.
Who made the offer can make a major difference in how Section 998 works after trial.
When a defendant serves a valid Section 998 offer that the plaintiff rejects, the plaintiff risks significant financial consequences if the final result is less favorable than the rejected offer.
Those consequences may include:
This is often where Section 998 creates the most pressure.
For example, imagine a defendant offers $500,000 under Section 998. The plaintiff rejects the offer and proceeds to trial. After trial, the plaintiff receives a $450,000 judgment.
Although the plaintiff still won the case, the result was worse than the rejected offer. At that point, the court may require the plaintiff to pay the defendant’s reasonable post-offer expert witness fees.
In a case involving multiple experts, those costs can substantially reduce the plaintiff’s net recovery.
Plaintiffs can also use Section 998 strategically.
If a plaintiff serves a valid offer that the defendant rejects, and the defendant later fails to obtain a more favorable judgment or award, the plaintiff may recover certain enhanced costs, reasonable post-offer expert witness fees at the court’s discretion, and other allowable statutory costs.
In personal injury and wrongful death cases, the plaintiff may also recover prejudgment interest at a 10 percent annual rate from the date of the Section 998 offer under California Civil Code Section 3291.
Prejudgment interest under this provision is generally not available in other case types such as business disputes or ordinary property damage claims.
This can become especially important in cases with strong liability evidence or persuasive expert testimony.
For example, a plaintiff with strong medical or economic expert opinions may use a carefully timed Section 998 offer to increase pressure before trial. If the defendant rejects the offer and later performs worse at trial, the additional expert-fee exposure can become substantial.
Not every settlement offer qualifies under Section 998.
California courts closely examine these offers, especially after trial when one side seeks expert witness costs.
Generally, a valid Section 998 offer must:
The good-faith requirement is especially important.
In practice, disputes often arise when one side argues that the offer was unrealistic or came too early to evaluate properly.
Courts generally expect a Section 998 offer to carry some reasonable possibility of acceptance based on the information available at the time.
That issue can become complicated in high-exposure litigation. A nominal defense offer in a catastrophic injury case, for example, may trigger later disputes about whether the offer was genuinely reasonable.
Timing matters too. Courts may look at whether the offeree had enough information to intelligently evaluate the case when the offer was made.
Because of that, attorneys often evaluate liability evidence, damages exposure, expert opinions, and discovery status before deciding when to serve a Section 998 offer.
Even when a valid offer is made, another fight often follows after trial: whether the final result was more favorable than the rejected offer.
That analysis can become surprisingly technical.
Courts may consider:
In some cases, a plaintiff may receive a verdict that appears larger than the rejected offer but still fail to obtain a more favorable net result after costs and offsets are calculated. For defendant offers, Section 998 excludes post-offer costs when determining whether the plaintiff obtained a more favorable judgment. That is one reason attorneys often perform detailed damages and cost analysis before making or responding to a Section 998 offer.
The timing of a Section 998 offer can affect both settlement strategy and post-trial cost recovery.
Early offers sometimes create pressure before litigation expenses escalate. But they can also create problems later if the opposing party argues there was not enough information available to evaluate the offer reasonably.
As a practical matter, many attorneys wait until key discovery has been completed before serving a Section 998 offer.
That may include:
At that point, both sides usually have a clearer understanding of the strengths, weaknesses, and value of the case.
Offers served shortly before trial can create serious settlement pressure because expert costs often increase rapidly during final trial preparation. That issue becomes especially important in expert-heavy litigation where preparation costs continue growing as trial approaches.
Section 998 strategy and expert witness strategy are often closely connected.
As a practical matter, attorneys may evaluate:
Sometimes a strong expert opinion supports a more aggressive settlement position.
Other times, uncertainty surrounding expert testimony may push both sides toward a more conservative resolution.
Post-trial disputes often come down to documentation as well. Weak billing records or vague invoices can create problems quickly when parties later seek expert-fee recovery.
Even when Section 998 applies, expert witness fees are not automatically recoverable.
Courts still evaluate whether the claimed costs were:
That issue becomes especially important in large cases involving multiple experts.
Courts may reduce or deny fees viewed as excessive, duplicative, or unrelated to necessary trial preparation.
For that reason, attorneys often monitor expert billing carefully throughout the litigation process.
Section 998 becomes especially important in technically complex disputes involving multiple experts.
Examples may include:
These cases may involve competing experts across several disciplines, creating substantial litigation costs long before trial begins.
A rejected Section 998 offer in a multi-expert case can create significant post-trial exposure. As a result, attorneys often evaluate Section 998 strategy alongside expert budgeting, mediation planning, and broader trial forecasting.
When evaluating a Section 998 offer, attorneys often focus on several practical questions.
The opposing party needs enough information to evaluate the offer meaningfully. Offers served too early sometimes create later disputes over enforceability or good faith.
In technical litigation, expert opinions often shape settlement value and trial outcomes. Weak or uncertain expert testimony can increase Section 998 risk quickly.
As trial approaches, expert expenses often rise substantially. That financial pressure alone can influence settlement strategy.
Cases involving uncertain damages or unpredictable juries can increase the importance of realistic settlement analysis.
Multi-party litigation often creates additional complexity involving comparative fault, indemnity exposure, and cost allocation.
Section 998 remains one of the most important settlement and cost-shifting tools in California civil litigation. In cases involving substantial expert testimony, the statute can significantly affect settlement leverage, litigation exposure, and post-trial financial outcomes.
For attorneys handling complex litigation, Section 998 strategy is often tied directly to expert retention, budgeting, mediation planning, and overall trial preparation.
A carefully timed and properly structured offer can strengthen settlement leverage while also creating opportunities for post-trial cost recovery.
Because expert witness fees can significantly alter the economics of a case, understanding how Section 998 works alongside expert testimony remains important for modern California litigators.
What Is a Section 998 Offer in California?
A Section 998 offer is a formal settlement offer made under California Code of Civil Procedure Section 998. The statute encourages settlement by creating financial consequences for parties who reject reasonable offers and later fail to obtain better results at trial.
Can Expert Witness Fees Be Recovered Under Section 998?
Yes. In qualifying situations, California courts may award reasonable post-offer expert witness fees when a party rejects a valid Section 998 offer and later fails to obtain a more favorable judgment or award.
Are All Expert Witness Costs Recoverable?
No. Courts evaluate whether the fees were reasonably necessary, reasonably incurred, and connected to qualifying post-offer litigation activity.
Can Both Plaintiffs and Defendants Use Section 998?
Yes. Both plaintiffs and defendants may use Section 998 offers strategically during litigation.
Why Does Section 998 Matter So Much in Expert-Heavy Cases?
Expert witness costs can become extremely expensive in technical litigation. Section 998 can shift those costs after trial, creating significant settlement pressure and financial risk.
Expert witnesses can become one of the largest litigation expenses in a case.
Depending on the dispute, expert-related work may involve:
Those costs add up quickly, especially when several experts are involved.
Under California’s ordinary cost rules, expert witness fees are generally not recoverable unless a statute specifically allows it. Section 998 creates one important exception in qualifying cases.
If a party rejects a valid Section 998 offer and later fails to obtain a better result, the court may order that party to pay certain post-offer expert witness costs incurred by the other side.
That possibility alone can significantly change settlement discussions.
Who made the offer can make a major difference in how Section 998 works after trial.
When a defendant serves a valid Section 998 offer that the plaintiff rejects, the plaintiff risks significant financial consequences if the final result is less favorable than the rejected offer.
Those consequences may include:
This is often where Section 998 creates the most pressure.
For example, imagine a defendant offers $500,000 under Section 998. The plaintiff rejects the offer and proceeds to trial. After trial, the plaintiff receives a $450,000 judgment.
Although the plaintiff still won the case, the result was worse than the rejected offer. At that point, the court may require the plaintiff to pay the defendant’s reasonable post-offer expert witness fees.
In a case involving multiple experts, those costs can substantially reduce the plaintiff’s net recovery.
Plaintiffs can also use Section 998 strategically.
If a plaintiff serves a valid offer that the defendant rejects, and the defendant later fails to obtain a more favorable judgment or award, the plaintiff may recover certain enhanced costs, reasonable post-offer expert witness fees at the court’s discretion, and other allowable statutory costs.
In personal injury and wrongful death cases, the plaintiff may also recover prejudgment interest at a 10 percent annual rate from the date of the Section 998 offer under California Civil Code Section 3291.
Prejudgment interest under this provision is generally not available in other case types such as business disputes or ordinary property damage claims.
This can become especially important in cases with strong liability evidence or persuasive expert testimony.
For example, a plaintiff with strong medical or economic expert opinions may use a carefully timed Section 998 offer to increase pressure before trial. If the defendant rejects the offer and later performs worse at trial, the additional expert-fee exposure can become substantial.
Not every settlement offer qualifies under Section 998.
California courts closely examine these offers, especially after trial when one side seeks expert witness costs.
Generally, a valid Section 998 offer must:
The good-faith requirement is especially important.
In practice, disputes often arise when one side argues that the offer was unrealistic or came too early to evaluate properly.
Courts generally expect a Section 998 offer to carry some reasonable possibility of acceptance based on the information available at the time.
That issue can become complicated in high-exposure litigation. A nominal defense offer in a catastrophic injury case, for example, may trigger later disputes about whether the offer was genuinely reasonable.
Timing matters too. Courts may look at whether the offeree had enough information to intelligently evaluate the case when the offer was made.
Because of that, attorneys often evaluate liability evidence, damages exposure, expert opinions, and discovery status before deciding when to serve a Section 998 offer.
Even when a valid offer is made, another fight often follows after trial: whether the final result was more favorable than the rejected offer.
That analysis can become surprisingly technical.
Courts may consider:
In some cases, a plaintiff may receive a verdict that appears larger than the rejected offer but still fail to obtain a more favorable net result after costs and offsets are calculated. For defendant offers, Section 998 excludes post-offer costs when determining whether the plaintiff obtained a more favorable judgment. That is one reason attorneys often perform detailed damages and cost analysis before making or responding to a Section 998 offer.
The timing of a Section 998 offer can affect both settlement strategy and post-trial cost recovery.
Early offers sometimes create pressure before litigation expenses escalate. But they can also create problems later if the opposing party argues there was not enough information available to evaluate the offer reasonably.
As a practical matter, many attorneys wait until key discovery has been completed before serving a Section 998 offer.
That may include:
At that point, both sides usually have a clearer understanding of the strengths, weaknesses, and value of the case.
Offers served shortly before trial can create serious settlement pressure because expert costs often increase rapidly during final trial preparation. That issue becomes especially important in expert-heavy litigation where preparation costs continue growing as trial approaches.
Section 998 strategy and expert witness strategy are often closely connected.
As a practical matter, attorneys may evaluate:
Sometimes a strong expert opinion supports a more aggressive settlement position.
Other times, uncertainty surrounding expert testimony may push both sides toward a more conservative resolution.
Post-trial disputes often come down to documentation as well. Weak billing records or vague invoices can create problems quickly when parties later seek expert-fee recovery.
Even when Section 998 applies, expert witness fees are not automatically recoverable.
Courts still evaluate whether the claimed costs were:
That issue becomes especially important in large cases involving multiple experts.
Courts may reduce or deny fees viewed as excessive, duplicative, or unrelated to necessary trial preparation.
For that reason, attorneys often monitor expert billing carefully throughout the litigation process.
Section 998 becomes especially important in technically complex disputes involving multiple experts.
Examples may include:
These cases may involve competing experts across several disciplines, creating substantial litigation costs long before trial begins.
A rejected Section 998 offer in a multi-expert case can create significant post-trial exposure. As a result, attorneys often evaluate Section 998 strategy alongside expert budgeting, mediation planning, and broader trial forecasting.
When evaluating a Section 998 offer, attorneys often focus on several practical questions.
The opposing party needs enough information to evaluate the offer meaningfully. Offers served too early sometimes create later disputes over enforceability or good faith.
In technical litigation, expert opinions often shape settlement value and trial outcomes. Weak or uncertain expert testimony can increase Section 998 risk quickly.
As trial approaches, expert expenses often rise substantially. That financial pressure alone can influence settlement strategy.
Cases involving uncertain damages or unpredictable juries can increase the importance of realistic settlement analysis.
Multi-party litigation often creates additional complexity involving comparative fault, indemnity exposure, and cost allocation.
Section 998 remains one of the most important settlement and cost-shifting tools in California civil litigation. In cases involving substantial expert testimony, the statute can significantly affect settlement leverage, litigation exposure, and post-trial financial outcomes.
For attorneys handling complex litigation, Section 998 strategy is often tied directly to expert retention, budgeting, mediation planning, and overall trial preparation.
A carefully timed and properly structured offer can strengthen settlement leverage while also creating opportunities for post-trial cost recovery.
Because expert witness fees can significantly alter the economics of a case, understanding how Section 998 works alongside expert testimony remains important for modern California litigators.
What Is a Section 998 Offer in California?
A Section 998 offer is a formal settlement offer made under California Code of Civil Procedure Section 998. The statute encourages settlement by creating financial consequences for parties who reject reasonable offers and later fail to obtain better results at trial.
Can Expert Witness Fees Be Recovered Under Section 998?
Yes. In qualifying situations, California courts may award reasonable post-offer expert witness fees when a party rejects a valid Section 998 offer and later fails to obtain a more favorable judgment or award.
Are All Expert Witness Costs Recoverable?
No. Courts evaluate whether the fees were reasonably necessary, reasonably incurred, and connected to qualifying post-offer litigation activity.
Can Both Plaintiffs and Defendants Use Section 998?
Yes. Both plaintiffs and defendants may use Section 998 offers strategically during litigation.
Why Does Section 998 Matter So Much in Expert-Heavy Cases?
Expert witness costs can become extremely expensive in technical litigation. Section 998 can shift those costs after trial, creating significant settlement pressure and financial risk.
State by State Expert Witness Rules
State by State Expert Witness Rules