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Defense Lawyer WITHDRAWS His Settlement Offer! Can He Really Do That?

The answer is yes, he can.
"But that's not fair!" you argue.
You're right. 

It's not fair. 
But it's the defense's money and until you've agreed to accept it, the offer is not binding.
"Is it ethical? Is it moral?" you ask wondering how the defense could do this.

Yes it is.
An offer is just that.
An offer.

Either you take it or you don't.
If you don't take it, there's nothing that says they have to leave that offer open and on the table.
They may say "Fine. You don't want our offer of $1 million dollars? Ok. That offer is now withdrawn. Now there's nothing on the table."

If the defense attorney makes a substantial offer, you reject it and then they take that offer off the table, is it possible they'd offer it again or increase their offer?

The answer is...it's possible.
But it's also possible they'd offer less.
It's possible they'd offer more.

It's possible they wouldn't make any further offer and instead go to verdict.
The problem is that you may never know the motivating factor behind the defense withdrawing their offer.
It may be an ego thing.

It may be a personality thing.
It may be the lawyer who has authority to settle feels he's being disrespected.
You just don't know.

"Your client doesn't want our $1 million dollars?? Are you kidding me? Well, then screw him. The offer's off the table now!" the attorney screeches as he walks out of the room.

Who knows?
Maybe the lawyer is fickle.
Maybe he's just playing games.

Maybe it's a bluff and he's not really withdrawing the offer.
Maybe it was just a tease to begin with and really was just a test.
A test to see if you'd be interested in settling your case at any price.

Maybe he was just probing.
"Would your client be willing to settle this case for $1 million dollars?"
"Not a chance," your lawyer says.

"Fine. I had authority to offer $1 million, but since he won't take it, I'm not going to formally offer it!"
You can feel the ego thing creeping in here.

On the other hand, maybe it's payback for the attorney.
Maybe your attorney has dealt unfairly with his opponent before.
Maybe your attorney has taken advantage of the insurance company before on another case he had.

Mabye the insurance company decides they're going to mess with his head and you are the unintended beneficiary of this effort.
Maybe your lawyer extracted more money than they were willing to part with on a different case.
They need not come right out and say "We'll remember you counselor. We know you'll be back and when you do, we'll remember what you did to us."

An offer to settle is an opportunity to realize this is guaranteed money in your pocket.
If you go to the jury, you NEVER know what the jury will do.
Your lawyer doesn't know.

The defense lawyer doesn't know.
The judge doesn't know.
The jury doesn't even know until they reach their final verdict.

You could have the best case in the world and the jury could throw your case out.
You coud have the best case in the world and the jury could give you a small amount of money as compensation for your injuries.
On the other hand, you could have a terrible case and the jury could give you a substantial amount of money.

The reality is that you just neve know what the jury will do.

In 29 years of practice here in New York, I have personally seen this happen only two times.
In each of those instances, the defense lawyer had a huge ego and was offended that my client rejected the offer.
I have found that the best defense attorneys honor their word and if an offer is rejected, that money is left there for the taking, should you change your mind.

To learn more about settlement negotiations, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer