Settlement

Twenty-three juries

In the year that ended June 30, 2025, the circuit court in Florida’s Seventh Judicial Circuit, which takes in Volusia, Flagler, Putnam, and St. Johns counties, disposed of 8,434 civil cases. A jury trial ended 23 of them. Across Florida the count was 909 out of 193,172, about one case in 200, according to the state courts’ statistical reference guide (opens in a new tab). The federal district courts’ table for the year ending September 30, 2025 (opens in a new tab) tells the same story: 1,681 of 407,379 civil cases ended during or after a trial, and that count includes trials to a judge.

If trials are that rare, what decides how the other cases end? Motions and defaults end some of them. The same state table puts 49,812 cases, about one in four, in its categories for dismissals after a settlement, and 11,309 of those settlements came out of mediation. In other words, a recorded settlement was more than fifty times as common as a jury trial. That does not mean the law stepped aside. Two sets of rules shape the bargaining: one protects what the parties say while they negotiate, and the other puts a price on saying no. In the activity, you compare the federal and Florida versions of that price and check an AI’s account of each against the text.

What the parties can say

Suppose the shell of a new pool in Palm Coast cracks, the repairs will cost $90,000, and the homeowner sues the contractor who built it. Settling means talking, and talk is risky. The contractor’s lawyer might concede that the crew rushed the job, or offer $40,000 to end the case. If the homeowner could read either one to a jury as proof of fault, nobody would say it.

The rules of evidence take that risk away. Under Federal Rule of Evidence 408 (opens in a new tab) and section 90.408, Florida Statutes, an offer to compromise a disputed claim cannot be used to prove liability or the claim’s value. Neither can what the parties say while negotiating it. That is the confidentiality of settlement communications, and it protects both sides alike: the evidence cannot be used to prove the claim or to disprove it. The two texts part ways after that. The federal rule goes on to list other purposes a court may admit the evidence for, such as showing a witness’s bias. Florida’s section lists none; it names only the uses it forbids.

Mediation adds a stronger layer. In a Florida civil action for damages, section 44.102 requires the court to send the case to mediation when a party asks and the costs can be paid. The exceptions include a medical malpractice claim and a small claims case. Chapter 44 defines the mediator as a neutral who helps the parties reach voluntary agreements “without prescribing what the resolution must be.” Then the Mediation Confidentiality and Privilege Act protects what happens in the room. Every mediation communication is confidential. A mediation party may refuse to testify about it later and may stop anyone else from testifying about it. A participant who knowingly and willfully breaks that confidence can be made to pay damages and fees. That is the mediation confidentiality and privilege of section 44.405, and it reaches further than section 90.408.

It has limits, and both matter to the homeowner. Evidence that was admissible or discoverable before the mediation stays that way, so the repair estimate she brings to the table does not become secret by being shown there. And a signed written agreement reached in mediation carries no confidentiality or privilege unless the parties agree otherwise. Keeping the deal quiet takes a confidential settlement agreement, which is a contract promise. Florida limits that promise too. Its Sunshine in Litigation Act voids any term that conceals a public hazard or the settlement of a claim against a government body. A county that settles a flooding claim cannot enforce a promise to keep the amount secret.

Federal courts have no statute like Florida’s. A federal law directs each district court to protect the confidentiality of its ADR processes by local rule, so the protection depends on the district.

A price on saying no

Under the American Rule, each side pays its own lawyer, win or lose. Both court systems add a cost for turning down an offer, but they set the cost differently, and the difference is the heart of the activity.

Start with the federal version. Under Federal Rule of Civil Procedure 68 (opens in a new tab), only a party defending against a claim can make an offer of judgment. It must serve the offer at least 14 days before trial, and the other side has 14 days to accept. If the offer is not accepted and the judgment the plaintiff finally obtains is not more favorable, the plaintiff must pay the costs incurred after the offer. Costs usually do not include attorney’s fees. They do when the statute behind the claim defines fees as part of costs. The Supreme Court so held in Marek v. Chesny, 473 U.S. 1 (1985) (opens in a new tab), a civil rights case whose fee statute awards fees “as part of the costs.”

Rule 68 also does nothing when the defendant wins. Rosemary August sued Delta Air Lines, claiming it fired her as a flight attendant because of her race, and she sought about $20,000 in back pay. Delta offered $450. She refused, went to trial, and lost, and Delta asked the court to make her pay its costs from the date of the offer. In Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981) (opens in a new tab), the Supreme Court said no. The rule reaches only a judgment the plaintiff obtains, and a judgment for the defendant is not one. A losing plaintiff usually pays the winner’s costs anyway, the Court reasoned, so the rule adds its push only where the plaintiff wins, but wins less than the offer.

Florida’s proposal for settlement reaches further, in four ways. Either side can make one. What shifts is attorney’s fees as well as costs, counted from the day the proposal was served. The trigger is a margin, not any shortfall. A defendant’s proposal pays off if the judgment is at least 25 percent less than the proposal, and a plaintiff’s if the judgment is at least 25 percent more. And a defendant’s proposal also pays off when the defendant wins, because the statute counts a judgment of no liability. The court may still disallow the fees if it finds the proposal was not made in good faith.

Run the pool case through it. Say the contractor serves a proposal for $60,000, and the homeowner lets it expire; a proposal is rejected unless accepted in writing within 30 days. If the jury awards $44,000, the judgment is about 27 percent below the proposal. The contractor is entitled to its costs and fees from the day it served the proposal, and the court sets them off against the award. If they total more than $44,000, the court enters judgment for the contractor for the difference. At $46,000 the result flips, because that is less than 25 percent below $60,000. Turn it around, and a homeowner whose $50,000 demand is rejected needs a judgment of at least $62,500 to collect her fees.

The two systems can meet in one case. The Eleventh Circuit treats section 768.79 as substantive Florida law that federal courts apply to Florida claims in diversity cases. In Menchise v. Akerman Senterfitt, 532 F.3d 1146 (11th Cir. 2008) (opens in a new tab), it held that Rule 68 does not preempt the statute, because the statute provides for attorney’s fees and Rule 68 provides only for costs. So a Florida claim filed in federal court can carry the Florida price with it.

Ten thousand dollars and a missing citation

Clivens Goldman sued Rose G. Campbell in a Florida court, and in August 1999 he served her with a proposal to settle for $10,000. He served it again in November 2003. She never accepted. In May 2004 a jury returned a verdict for him of $18,900, well past the 25 percent margin his proposal needed. He moved for his attorney’s fees, and the trial court denied the motion.

The flaw was one missing citation. Goldman’s proposal named Florida Rule of Civil Procedure 1.442 but never cited section 768.79, and the statute says an offer must state that it is made under that section. The Fourth District Court of Appeal treated the omission as a technical violation. The Florida Supreme Court disagreed in Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007) (opens in a new tab). The statute and the rule depart from the common-law rule that each side pays its own fees, the court said, so every part of both must be strictly construed. A proposal that does not name the statute cannot support fees.

Two separate opinions followed. Justice Pariente, joined by Justice Anstead, agreed with the result reluctantly: the proposal left no one confused, and denying fees did nothing for the statute’s goal of encouraging settlement. Parties are now on notice, she wrote, that all “t’s” must be crossed and “i’s” dotted. Justice Bell agreed that the text required the citation but rejected the court’s reason for reading it strictly, because the words were plain enough without any rule of construction. Read the three opinions and decide which of them has the better of it.

Strict construction turns Rule 1.442 into a checklist. A proposal must be in writing and name the Florida law it is made under. It must name who makes it and to whom, and state that it resolves all damages that would otherwise be awarded in a final judgment. It must state its total amount, any amount for punitive damages, and whether it includes attorney’s fees and whether fees are part of the legal claim. It needs a certificate of service. A joint proposal, made by or to more than one party, must state the amount and terms attributable to each party. As the court put it in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003), “an offer from multiple plaintiffs must apportion the offer among the plaintiffs.”

The checklist has changed, too. Since July 1, 2022, a proposal must leave out nonmonetary terms, except a voluntary dismissal of all claims with prejudice and terms a statute permits. The court’s 2022 order (opens in a new tab) explained that section 768.79 contemplates a comparison of money amounts. So a proposal that demands a general release or a promise of secrecy now breaks the rule, where before 2022 it only had to state such terms with particularity. Timing is on the checklist as well. A proposal to a defendant can be served no earlier than 90 days after that defendant was served with process, and a proposal to a plaintiff no earlier than 90 days after the action began. None can be served later than 45 days before the trial date, or 45 days before the first day of the trial docket if that comes sooner.

Checking the table

Every cell in the table you build has a home in a text you can open. Rule 68(a) answers who may make a federal offer and when; section 768.79 and Rule 1.442(b) answer the same for Florida. Rule 68(d) and section 768.79 say what shifts, and at what margin. Delta and the no-liability clause of section 768.79 cover a defense win. Rule 1.442(c), read the way Campbell reads it, sets how strict the form must be.

Look first where a blend would hide. Rule 68 has no percentage threshold, and a Florida plaintiff can make a proposal. A table that gives Rule 68 a 25 percent trigger, or says only defendants can use section 768.79, has merged the two systems into one. The activity starts with the Settlement Landscape Briefing, then has you build the table and run the Source-Grounded Verifier against it. Hold the verifier’s doubts to the same standard as the table: a cell is confirmed when you have found its words in the rule or the statute. Goldman won his verdict and still lost his fees over one citation.