What judgment result triggers fee-shifting under O.C.G.A. § 9-11-68?

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Fee-shifting under this statute depends on comparing the final judgment to a rejected settlement offer and seeing whether the result crosses a set percentage line. O.C.G.A. § 9-11-68 uses two different thresholds, one for defendants and one for plaintiffs, and only a judgment falling on the wrong side of the relevant line opens the door to a fee award.

The defendant’s threshold

When a defendant makes a settlement offer that the plaintiff rejects, the question becomes how the plaintiff ultimately fares. Fee-shifting in the defendant’s favor is triggered if the final judgment is one of no liability, meaning the plaintiff recovers nothing, or if the plaintiff’s final judgment is less than 75% of the rejected offer. In either case the plaintiff did worse than the offer by a meaningful margin, and the defendant may seek its post-rejection fees and expenses.

The plaintiff’s threshold

The mirror rule protects plaintiffs who make reasonable offers. If a plaintiff’s settlement offer is rejected by the defendant and the plaintiff then recovers a final judgment greater than 125% of that offer, the plaintiff may recover fees and expenses incurred after the rejection. Here the plaintiff beat its own offer by a wide enough margin to show the defendant should have accepted.

How the comparison works

A few features shape the calculation:

  • The benchmark is the final judgment compared against the specific rejected offer.
  • The recoverable fees and expenses run from the date the offer was rejected through entry of judgment, not the whole case.
  • An offer left neither withdrawn nor accepted within its window is treated as rejected, which fixes the comparison point.

Because the math turns on a final number, results near the 75% or 125% lines can make the difference between owing fees and owing nothing, which is part of why parties weigh these offers carefully.

The bottom line

The triggering result under § 9-11-68 is a final judgment that misses the mark badly enough: for a defendant’s offer, a no-liability verdict or a plaintiff’s judgment under 75% of the offer; for a plaintiff’s offer, a judgment over 125% of the offer. Only when the outcome clears the applicable threshold may the court shift post-rejection attorney fees and litigation expenses to the rejecting party’s opponent.

This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.

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