Prior to January 1, 2016, California Code of Civil Procedure § 998 contained an apparent inequity between a plaintiff’s and a defendant’s ability to recover expert witness costs. Prior to January 1, 2016, Section 998 allowed a plaintiff to recover only “post-offer” expert witness costs. However, the statute did not place any such limitation on a defendant’s ability to recover expert witness costs, leaving open the possibility that a defendant may recover both “post-offer” and “pre-offer” costs.
Section 998 has now been amended to clarify that, after January 1, 2016, the “post-offer” limitation applies equally to plaintiffs and defendants. Plaintiffs and defendants are now equally incentivized to make early 998 offers to maximize their recoverable costs.