The enforceability of the offer of judgment rule in Georgia is now established as the Georgia Supreme Court in Smith v. Baptiste made it clear in its ruling on Monday that the 2005 offer of judgment rule was permitted under Georgia's Constitution. (Prior post).
To paraphrase Grateful Dead front man Jerry Garcia, however, "what a long, strange trip it was."
The Georgia offer of judgment rule (codified at O.C.G.A. 9-11-68) provides that either party may serve upon the other a written demand or offer to settle a tort claim for a specified amount of money. If either party's settlement demand or offer is rejected, that party may be entitled to recover its attorney's fees.
The statute provides:
(1) If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.
(2) If a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the plaintiff or on the plaintiff's behalf from the date of the rejection of the offer of settlement through the entry of judgment.
In Baptiste, the defendant had made a settlement offer under rule 68 which was rejected. When the defendant subsequently prevailed on summary judgment and applied for an award of attorney's fees, the trial court refused the motion on the grounds that Rule 68 was invalid under the Georgia Constitution. Defendant then appealed.
The Constitutional issue was one unique to the Georgia Constitution which provides, in Art. I, Sec. I, Par. XII that "[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state."
The Georgia Supreme Court, in a 5-2 ruling, reversed the trial court and upheld the statute. What is remarkable is the means by which the majority reached its decision.
The key to the majority's decision was a finding that Art. I, Sec. I, Par. XII guaranteed Georgian's "a right of choice between self-representation and representation by counsel" and not "a right of access to the courts." The majority cited several prior decisions to this effect, along with a passage from "A Stenographic Report of the Proceedings of the Constitutional Convention Held in Atlanta, Georgia, 1877" as reported by Samuel W. Small, a reporter for the Atlanta Constitution (a predecessor to the current Atlanta Journal Constitution newspaper).
The quotation from Mr. Small's report purported to demonstrate, through an exchange between the delegates at the 1877 Constitutional Convention, that the Paragraph XII was intended to preserve a right of self-representation, rather than a blanket right of access to the courts.
The dissent, authored by Justice Carol Hunstein with Justice Benham joining, argued that Mr. Small's report was not reliable and was not an "official" account of the proceedings at the Constitutional Convention. Indeed the bulk of the dissent focused on the reliability and accuracy of Mr. Small's 1877 stenographic account of the proceedings.
In response, the majority devoted nearly half of its opinion in a defense of the accuracy of Mr. Small's report, noting the number of times past court decisions had quoted Mr. Small's report and noting that the Constitutional Convention had passed a resolution thanking Mr. Small "for the very able, faithful and impartial manner in which he as reported the proceedings of this Convention."
The dissent, however, claimed that this resolution was merely a "gesture of appreciation made by the convention members to the reporters covering their efforts," rather than an acknowledgement of the accuracy of Mr. Small's reporting.
Justice Nahmias, in his concurring opinion, called this "extensive debate" between the majority and the dissent "interesting, but largely irrelevant." He wrote:
"If I had to decide the issue, I would say that Mr. Small's report is not the "official" record, but that it is a reliable record of the proceedings - and that is the more important point for the task at hand."
Justice Nahmias then takes this "interesting, but largely irrelevant" debate one step further, comparing Mr. Small's unofficial but reliable report to the equally unofficial writings of James Madison in the Federalist Papers and Thomas Jefferson in his contemporaneous writings on the federal Constitutional Convention in that those writings "are useful because they demonstrate what intelligent and informed people at the time understood the language of the Constitution to mean and what evils it was meant to protect against." To that end, Justice Nahmias concluded:
"if one looks beyond the plain language of the provision, the history confirms its meaning and its perceived need at the time - to guarantee the right to choose self-representation or representation by counsel in all cases in Georgia's courts." And "while the dissent contends that construi9ng the 'right to the courts' provision as a 'mere right to self-representation in the courts' is so constricting as to render the provision 'meaningless,' Dissenting Op. at 1 & n.1, that contention reflects a profound misunderstanding of our history and a profound disregard for the right to self-representation."
Importantly, while the court's decision may represent the high-water mark of history's recognition of the contributions of Samuel W. Small, it also marks a point of clarity for the offer of judgment rule in Georgia as the statute is now safe from Constitutional challenge.