Nevada’s Supreme Court has overruled Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021) to the extent it holds that a plaintiff represented on a contingency fee may recover the entire contingency fee if an offer of judgment is beaten. In Clark v. Marin, 142 Nev. Adv. Op. 47 (July 2, 2026), Marin sued Clark for injuries sustained in a motor vehicle accident. Marin served Clark a $2 million offer of judgment 24 days before trial. The jury’s verdict totaled $2,045,117.55. Offers of judgment under NRCP 68 are a powerful tool, allowing a plaintiff to serve an offer of judgment and recover post-offer attorneys’ fees if the plaintiff recovers more than was offered. The verdict here, plus prejudgment interest and taxable costs, produced a judgment that exceeded $2 million, so the plaintiff moved for attorneys’ fees. In Capriati, the Supreme Court affirmed a district court’s order awarding a personal injury plaintiff’s entire contingency fee because a “contingency fee does not vest until the client prevails.” As the client does not prevail until after the offer of judgment is served, the full contingency fee could be awarded. The district court applied Capriati and awarded “attorney’s fees in the full amount of Marin’s contingency fee agreement, totaling $818,047.02.” On appeal, Clark overruled Capriati. Clark reasoned a personal injury plaintiff incurs attorneys’ fees throughout the case but has no obligation to pay them unless there is a recovery. This is consistent with the fact that clients who discharge attorneys on contingency fee agreements are still obligated to pay for the services they receive. Moving forward, “while courts can consider the contingency fee amount in awarding attorney fees under NRCP 68, the award must be proportionate to and directly reflective of the work performed from the time of the offer.” The Court did not specify a specific method for doing so, but district courts “should determine a starting amount and make adjustments to account only for the work completed post-offer.” The Clark decision is a significant ruling for defendants. Nevada courts have consistently ruled that offers of judgment are not intended to force parties unfairly to forego legitimate claims. Excessive fee awards, “like those covering the entirety of a contingency fee agreement, risk such an effect. … NRCP 68 must hold offerees responsible for the value of the work required in continuing to litigate the case instead of settling, and no more.”

Jonathan Meer (Partner-New York, NY) will present the Wilson Elser Forum webinar “Legal Ethics in the World of Artificial Intelligence” on July 16, 2026. The presentation will address how attorney regulation has evolved over time and what steps are being considered for policing attorney use of AI. Jonathan will touch on some of the model rules and ethical opinions concerning technology, as well as rules being adopted by the courts regarding AI use. He’ll also highlight instances of attorneys being reprimanded for misusing AI. Using artificial intelligence as a tool is becoming more commonplace among lawyers. The AI guidelines, whether established by courts, state bar associations, law firms, individual practitioners, or otherwise, should be a growing concern that requires careful consideration by lawyers today. 

John Cahill (Associate–White Plains, NY) was quoted in the article "AI Skills Redefine Lawyer Training, Law Students Must Adapt," appearing in the June 29, 2026, posting of Blockchain.News. The article examines how generative AI is reshaping legal training and the skills law firms seek in new lawyers, emphasizing that while AI is streamlining routine legal work, qualities such as sound judgment, adaptability, and strong client communication remain indispensable. Drawing on comments he made during a Harvey webinar, John underscored the role lawyers continue to play in an AI-enabled profession, observing that "Critical thinking is one of the most important skills." The article notes that while AI can assist with drafting documents and conducting legal research, attorneys remain responsible for evaluating AI-generated work, ensuring legal accuracy, and exercising the professional judgment that clients and the profession demand.

Rebecca Young (Partner-Birmingham, AL) and Caroline Pennington (Associate-Birmingham, AL) secured dismissal of all claims in the U.S. District Court, Middle District of Alabama, on behalf of Wilson Elser's Housing Authority client and several of its employees. The clients were collectively alleged to have engaged in conspiracy, fraud, and racial discrimination against the plaintiff in this case, a minority business owner. The plaintiff alleged that the Housing Authority stopped awarding his company various open-bid projects after learning his business was minority-owned. His 36-page complaint detailed the number of bidding opportunities, contract awards, and payments awarded before our client allegedly discovered that his business was minority-owned, as well as various actions taken by the Housing Authority and its employees. Rebecca and Caroline filed a dispositive motion arguing that, despite its length and factual detail, the complaint failed to state a viable claim. They demonstrated that the plaintiff did not identify which individual defendants engaged in the conduct underlying the claims, that the conspiracy allegations failed under the Intracorporate Conspiracy Doctrine, and that the plaintiff failed to adequately establish that race, rather than his failure to submit the lowest bids, was the reason he was not awarded the contracts. In response, the plaintiff argued that the pleading sufficiently demonstrated that he was denied an equal opportunity during the bidding process due to differences in how the Housing Authority communicated with other bidders. During oral argument, the court agreed that the pleading was insufficient to state a claim and ultimately granted an order in favor of Wilson Elser’s clients, dismissing all claims. 

Maryan Alexander (Partner-Baltimore, MD) will present the webinar “Litigation Management 101” as part of CLM’s 2026 Insurance 101 Webinar Series, Building a Strong Foundation in Insurance Fundamentals, to be held on July 29, 2026. Maryan’s session provides a high-level overview of the litigation process and the claims professional’s role in managing outside counsel, budgets, and case strategy. Participants will gain insight into key litigation milestones, reporting expectations, and effective collaboration with defense counsel. Ideal for those newer to litigation oversight, this session emphasizes proactive management practices that support strong outcomes and cost control.

Understanding key principles of policy interpretation and following sound drafting practices can help you reduce ambiguity, minimize costly disputes, and ensure coverage is applied as intended—protecting both your organization and your insureds. Wilson Elser’s Words Matter! is a one-page reference guide developed by our Insurance Coverage Practice attorneys to avoid issues with insurance policy and application language.

Joe Baiocco (Partner-White Plains, NY), Lara Lickhalter (Partner-Chicago, IL), Wendy Testa (Partner-Philadelphia, NY), and Jane Young (Partner-Denver, CO) are featured professors in the Transportation and Construction Schools at the 2026 ClaimsXchange Claims Academy in Chicago, Illinois, on July 14 ‒ 15, 2026. The Academy, an intensive two-day CLE and CE-accredited program, brings together renowned experts in various claims management specialties to offer professionals a challenging curriculum and unparalleled opportunities for creative learning and problem-solving. Wendy, who will serve as both provost and an instructor for the Construction track, will present "Construction Contracts and Risk Transfer" and "Emerging Professional and Technological Exposures in Construction". Jane, also an instructor in the Construction track, will present "Analysis of Coverage and Potential Gaps Related to Design and Construction Claims." Joe and Lara will provide their expertise in the Transportation School Track. Joe’s sessions include “Creative Resolution Strategies" and "Rapid Response", and Lara will provide instruction in her session "Risk Transfer.” Programs presented by our attorneys focus on developing advanced decision-making skills through analytical and practical approaches to evaluating transportation and construction/design claims; strengthening negotiation techniques for resolving complex disputes; and enhancing participants' ability to evaluate significant construction/design claims and analyze the coverage issues they present. 

​Jazmin Williams (Associate-White Plains, NY) and Jay Potter (Partner-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, Nassau County, on behalf of Wilson Elser’s client, a sign repair company, securing dismissal of all claims and cross-claims. The team persuaded the court to reject the plaintiff’s metallurgical engineering expert’s opinions as speculative and unsupported by the evidence. The plaintiff, a convenience store patron, alleged that a portion of a store sign fell and struck her head and neck, causing a traumatic brain injury and requiring a multi-level cervical fusion. She made a $10 million pre-motion settlement demand, and the store owner sought defense and indemnification from the client as well. Our client had been retained to perform limited repairs to the sign approximately 13 months before the accident. Through a careful analysis of the governing contracts and testimony from the co-defendants, Jazmin established that the client acted solely as an independent contractor with a narrowly defined scope of work. Further evidence demonstrated that the parties specifically negotiated a one-year warranty on the repairs. This record helped establish Wilson Elser’s prima facie argument that the client owed no duty to inspect or reassess the sign after its work was completed. Jazmin meticulously prepared the client's witnesses for deposition and secured testimony confirming the owner's acceptance of the completed work. Combined with the defense expert's opinions, the court agreed that the evidence eliminated any triable issue of fact as to whether the sign was defective when the client completed its repairs more than a year before the incident. Without evidence linking the client’s repair work to the sign failure, the plaintiff’s engineering expert lacked a factual basis to support his causation opinions. The court agreed with Wilson Elser’s arguments that the plaintiff’s expert’s opinions were based on speculation and conjecture, rejected them outright, and dismissed both the plaintiff’s negligence claims against the client and the contractual indemnification and contribution claims asserted by the co-defendants.

Justin St. Louis (Of Counsel-Washington, DC) authored the article “What to Know about Virginia’s New Med-Mal Reporting Law,” appearing in the June 29, 2026, edition of Virginia Lawyers Weekly. The article examines Virginia's enactment of a new medical malpractice claims reporting law, effective July 1, 2026, following the legislature's decision to reject broader reforms that would have increased the state's medical malpractice damages cap. In this follow-up to the author’s earlier analysis of those rejections, he notes that although the damages cap remains unchanged, the new law establishes a reporting framework requiring certain health care entities and insurers to disclose malpractice claims data beginning October 1, 2026. The article highlights the governor's amendments, which broaden the scope of covered reporting entities beyond self-insured hospitals to include a broader range of healthcare providers and medical care facilities that maintain self-insurance, captive insurance, risk retention arrangements, or other retained financial risk; centralize reporting through the Bureau of Insurance; strengthen confidentiality protections; and eliminate certain financial reporting and disclosure requirements, among other changes. The author also discusses the law's strategic implications for healthcare providers, outlining practical steps organizations should consider to prepare for the new reporting requirements and continued legislative scrutiny of Virginia's medical malpractice damages cap. 

Kathleen Wilkinson was honored with the Pennsylvania Bar Association’s (PBA) 2026 Civil Litigation Professional Excellence Award, presented at the PBA Civil Litigation Section’s Annual Civil Litigation Retreat in State College, Pennsylvania, on April 25, 2026. Past Section Chair Jennifer Coatsworth and the Honorable Stephanie Domitrovich, a senior state trial judge, presented the award. At the presentation, Past Chair Coatsworth stated that as past president of the Pennsylvania Bar Association and past chair of the Civil Litigation Section, Kathleen has long been recognized for her leadership, professionalism, and commitment to the legal profession. As PBA president, she championed attorney wellness and civility, leading the PBA House of Delegates to support a wellness pledge. Kathleen’s nomination highlighted her distinguished service as the PBA's 127th President and the Philadelphia Bar Association’s 86th Chancellor ‒ the sixth woman to hold each office ‒ as well as her continued leadership through committee service, mentoring, and strategic guidance to both organizations. Throughout her career, Kathleen’s nomination also emphasized that Kathleen has advanced initiatives focused on attorney wellness, civility, diversity and inclusion, leadership development, and the advancement of women in the profession. As Philadelphia Bar Association Chancellor, she established the Chancellor Leadership Institute to help young and diverse attorneys develop leadership skills, and she has remained an active contributor to CLE programming and the PBA's Civility Committee. Kathleen’s nomination aptly recognized her as embodying the qualities the Civil Litigation Professional Excellence Award celebrates: excellence in the practice and administration of law, unwavering integrity, the highest ethical standards, and civility and fairness both inside and outside the courtroom. 

John Cahill (Associate–White Plains, NY) was quoted in the article "AI Skills Redefine Lawyer Training, Law Students Must Adapt," appearing in the June 29, 2026, posting of Blockchain.News. The article examines how generative AI is reshaping legal training and the skills law firms seek in new lawyers, emphasizing that while AI is streamlining routine legal work, qualities such as sound judgment, adaptability, and strong client communication remain indispensable. Drawing on comments he made during a Harvey webinar, John underscored the role lawyers continue to play in an AI-enabled profession, observing that "Critical thinking is one of the most important skills." The article notes that while AI can assist with drafting documents and conducting legal research, attorneys remain responsible for evaluating AI-generated work, ensuring legal accuracy, and exercising the professional judgment that clients and the profession demand.

Jonathan Meer (Partner-New York, NY) will present the Wilson Elser Forum webinar “Legal Ethics in the World of Artificial Intelligence” on July 16, 2026. The presentation will address how attorney regulation has evolved over time and what steps are being considered for policing attorney use of AI. Jonathan will touch on some of the model rules and ethical opinions concerning technology, as well as rules being adopted by the courts regarding AI use. He’ll also highlight instances of attorneys being reprimanded for misusing AI. Using artificial intelligence as a tool is becoming more commonplace among lawyers. The AI guidelines, whether established by courts, state bar associations, law firms, individual practitioners, or otherwise, should be a growing concern that requires careful consideration by lawyers today. 

Nevada’s Supreme Court has overruled Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021) to the extent it holds that a plaintiff represented on a contingency fee may recover the entire contingency fee if an offer of judgment is beaten. In Clark v. Marin, 142 Nev. Adv. Op. 47 (July 2, 2026), Marin sued Clark for injuries sustained in a motor vehicle accident. Marin served Clark a $2 million offer of judgment 24 days before trial. The jury’s verdict totaled $2,045,117.55. Offers of judgment under NRCP 68 are a powerful tool, allowing a plaintiff to serve an offer of judgment and recover post-offer attorneys’ fees if the plaintiff recovers more than was offered. The verdict here, plus prejudgment interest and taxable costs, produced a judgment that exceeded $2 million, so the plaintiff moved for attorneys’ fees. In Capriati, the Supreme Court affirmed a district court’s order awarding a personal injury plaintiff’s entire contingency fee because a “contingency fee does not vest until the client prevails.” As the client does not prevail until after the offer of judgment is served, the full contingency fee could be awarded. The district court applied Capriati and awarded “attorney’s fees in the full amount of Marin’s contingency fee agreement, totaling $818,047.02.” On appeal, Clark overruled Capriati. Clark reasoned a personal injury plaintiff incurs attorneys’ fees throughout the case but has no obligation to pay them unless there is a recovery. This is consistent with the fact that clients who discharge attorneys on contingency fee agreements are still obligated to pay for the services they receive. Moving forward, “while courts can consider the contingency fee amount in awarding attorney fees under NRCP 68, the award must be proportionate to and directly reflective of the work performed from the time of the offer.” The Court did not specify a specific method for doing so, but district courts “should determine a starting amount and make adjustments to account only for the work completed post-offer.” The Clark decision is a significant ruling for defendants. Nevada courts have consistently ruled that offers of judgment are not intended to force parties unfairly to forego legitimate claims. Excessive fee awards, “like those covering the entirety of a contingency fee agreement, risk such an effect. … NRCP 68 must hold offerees responsible for the value of the work required in continuing to litigate the case instead of settling, and no more.”

Rebecca Young (Partner-Birmingham, AL) and Caroline Pennington (Associate-Birmingham, AL) secured dismissal of all claims in the U.S. District Court, Middle District of Alabama, on behalf of Wilson Elser's Housing Authority client and several of its employees. The clients were collectively alleged to have engaged in conspiracy, fraud, and racial discrimination against the plaintiff in this case, a minority business owner. The plaintiff alleged that the Housing Authority stopped awarding his company various open-bid projects after learning his business was minority-owned. His 36-page complaint detailed the number of bidding opportunities, contract awards, and payments awarded before our client allegedly discovered that his business was minority-owned, as well as various actions taken by the Housing Authority and its employees. Rebecca and Caroline filed a dispositive motion arguing that, despite its length and factual detail, the complaint failed to state a viable claim. They demonstrated that the plaintiff did not identify which individual defendants engaged in the conduct underlying the claims, that the conspiracy allegations failed under the Intracorporate Conspiracy Doctrine, and that the plaintiff failed to adequately establish that race, rather than his failure to submit the lowest bids, was the reason he was not awarded the contracts. In response, the plaintiff argued that the pleading sufficiently demonstrated that he was denied an equal opportunity during the bidding process due to differences in how the Housing Authority communicated with other bidders. During oral argument, the court agreed that the pleading was insufficient to state a claim and ultimately granted an order in favor of Wilson Elser’s clients, dismissing all claims. 

Maryan Alexander (Partner-Baltimore, MD) will present the webinar “Litigation Management 101” as part of CLM’s 2026 Insurance 101 Webinar Series, Building a Strong Foundation in Insurance Fundamentals, to be held on July 29, 2026. Maryan’s session provides a high-level overview of the litigation process and the claims professional’s role in managing outside counsel, budgets, and case strategy. Participants will gain insight into key litigation milestones, reporting expectations, and effective collaboration with defense counsel. Ideal for those newer to litigation oversight, this session emphasizes proactive management practices that support strong outcomes and cost control.

Understanding key principles of policy interpretation and following sound drafting practices can help you reduce ambiguity, minimize costly disputes, and ensure coverage is applied as intended—protecting both your organization and your insureds. Wilson Elser’s Words Matter! is a one-page reference guide developed by our Insurance Coverage Practice attorneys to avoid issues with insurance policy and application language.

Joe Baiocco (Partner-White Plains, NY), Lara Lickhalter (Partner-Chicago, IL), Wendy Testa (Partner-Philadelphia, NY), and Jane Young (Partner-Denver, CO) are featured professors in the Transportation and Construction Schools at the 2026 ClaimsXchange Claims Academy in Chicago, Illinois, on July 14 ‒ 15, 2026. The Academy, an intensive two-day CLE and CE-accredited program, brings together renowned experts in various claims management specialties to offer professionals a challenging curriculum and unparalleled opportunities for creative learning and problem-solving. Wendy, who will serve as both provost and an instructor for the Construction track, will present "Construction Contracts and Risk Transfer" and "Emerging Professional and Technological Exposures in Construction". Jane, also an instructor in the Construction track, will present "Analysis of Coverage and Potential Gaps Related to Design and Construction Claims." Joe and Lara will provide their expertise in the Transportation School Track. Joe’s sessions include “Creative Resolution Strategies" and "Rapid Response", and Lara will provide instruction in her session "Risk Transfer.” Programs presented by our attorneys focus on developing advanced decision-making skills through analytical and practical approaches to evaluating transportation and construction/design claims; strengthening negotiation techniques for resolving complex disputes; and enhancing participants' ability to evaluate significant construction/design claims and analyze the coverage issues they present. 

​Jazmin Williams (Associate-White Plains, NY) and Jay Potter (Partner-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, Nassau County, on behalf of Wilson Elser’s client, a sign repair company, securing dismissal of all claims and cross-claims. The team persuaded the court to reject the plaintiff’s metallurgical engineering expert’s opinions as speculative and unsupported by the evidence. The plaintiff, a convenience store patron, alleged that a portion of a store sign fell and struck her head and neck, causing a traumatic brain injury and requiring a multi-level cervical fusion. She made a $10 million pre-motion settlement demand, and the store owner sought defense and indemnification from the client as well. Our client had been retained to perform limited repairs to the sign approximately 13 months before the accident. Through a careful analysis of the governing contracts and testimony from the co-defendants, Jazmin established that the client acted solely as an independent contractor with a narrowly defined scope of work. Further evidence demonstrated that the parties specifically negotiated a one-year warranty on the repairs. This record helped establish Wilson Elser’s prima facie argument that the client owed no duty to inspect or reassess the sign after its work was completed. Jazmin meticulously prepared the client's witnesses for deposition and secured testimony confirming the owner's acceptance of the completed work. Combined with the defense expert's opinions, the court agreed that the evidence eliminated any triable issue of fact as to whether the sign was defective when the client completed its repairs more than a year before the incident. Without evidence linking the client’s repair work to the sign failure, the plaintiff’s engineering expert lacked a factual basis to support his causation opinions. The court agreed with Wilson Elser’s arguments that the plaintiff’s expert’s opinions were based on speculation and conjecture, rejected them outright, and dismissed both the plaintiff’s negligence claims against the client and the contractual indemnification and contribution claims asserted by the co-defendants.

Justin St. Louis (Of Counsel-Washington, DC) authored the article “What to Know about Virginia’s New Med-Mal Reporting Law,” appearing in the June 29, 2026, edition of Virginia Lawyers Weekly. The article examines Virginia's enactment of a new medical malpractice claims reporting law, effective July 1, 2026, following the legislature's decision to reject broader reforms that would have increased the state's medical malpractice damages cap. In this follow-up to the author’s earlier analysis of those rejections, he notes that although the damages cap remains unchanged, the new law establishes a reporting framework requiring certain health care entities and insurers to disclose malpractice claims data beginning October 1, 2026. The article highlights the governor's amendments, which broaden the scope of covered reporting entities beyond self-insured hospitals to include a broader range of healthcare providers and medical care facilities that maintain self-insurance, captive insurance, risk retention arrangements, or other retained financial risk; centralize reporting through the Bureau of Insurance; strengthen confidentiality protections; and eliminate certain financial reporting and disclosure requirements, among other changes. The author also discusses the law's strategic implications for healthcare providers, outlining practical steps organizations should consider to prepare for the new reporting requirements and continued legislative scrutiny of Virginia's medical malpractice damages cap. 

Kathleen Wilkinson was honored with the Pennsylvania Bar Association’s (PBA) 2026 Civil Litigation Professional Excellence Award, presented at the PBA Civil Litigation Section’s Annual Civil Litigation Retreat in State College, Pennsylvania, on April 25, 2026. Past Section Chair Jennifer Coatsworth and the Honorable Stephanie Domitrovich, a senior state trial judge, presented the award. At the presentation, Past Chair Coatsworth stated that as past president of the Pennsylvania Bar Association and past chair of the Civil Litigation Section, Kathleen has long been recognized for her leadership, professionalism, and commitment to the legal profession. As PBA president, she championed attorney wellness and civility, leading the PBA House of Delegates to support a wellness pledge. Kathleen’s nomination highlighted her distinguished service as the PBA's 127th President and the Philadelphia Bar Association’s 86th Chancellor ‒ the sixth woman to hold each office ‒ as well as her continued leadership through committee service, mentoring, and strategic guidance to both organizations. Throughout her career, Kathleen’s nomination also emphasized that Kathleen has advanced initiatives focused on attorney wellness, civility, diversity and inclusion, leadership development, and the advancement of women in the profession. As Philadelphia Bar Association Chancellor, she established the Chancellor Leadership Institute to help young and diverse attorneys develop leadership skills, and she has remained an active contributor to CLE programming and the PBA's Civility Committee. Kathleen’s nomination aptly recognized her as embodying the qualities the Civil Litigation Professional Excellence Award celebrates: excellence in the practice and administration of law, unwavering integrity, the highest ethical standards, and civility and fairness both inside and outside the courtroom. 

John Cahill (Associate–White Plains, NY) was quoted in the article "AI Skills Redefine Lawyer Training, Law Students Must Adapt," appearing in the June 29, 2026, posting of Blockchain.News. The article examines how generative AI is reshaping legal training and the skills law firms seek in new lawyers, emphasizing that while AI is streamlining routine legal work, qualities such as sound judgment, adaptability, and strong client communication remain indispensable. Drawing on comments he made during a Harvey webinar, John underscored the role lawyers continue to play in an AI-enabled profession, observing that "Critical thinking is one of the most important skills." The article notes that while AI can assist with drafting documents and conducting legal research, attorneys remain responsible for evaluating AI-generated work, ensuring legal accuracy, and exercising the professional judgment that clients and the profession demand.

Jonathan Meer (Partner-New York, NY) will present the Wilson Elser Forum webinar “Legal Ethics in the World of Artificial Intelligence” on July 16, 2026. The presentation will address how attorney regulation has evolved over time and what steps are being considered for policing attorney use of AI. Jonathan will touch on some of the model rules and ethical opinions concerning technology, as well as rules being adopted by the courts regarding AI use. He’ll also highlight instances of attorneys being reprimanded for misusing AI. Using artificial intelligence as a tool is becoming more commonplace among lawyers. The AI guidelines, whether established by courts, state bar associations, law firms, individual practitioners, or otherwise, should be a growing concern that requires careful consideration by lawyers today. 

Nevada’s Supreme Court has overruled Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021) to the extent it holds that a plaintiff represented on a contingency fee may recover the entire contingency fee if an offer of judgment is beaten. In Clark v. Marin, 142 Nev. Adv. Op. 47 (July 2, 2026), Marin sued Clark for injuries sustained in a motor vehicle accident. Marin served Clark a $2 million offer of judgment 24 days before trial. The jury’s verdict totaled $2,045,117.55. Offers of judgment under NRCP 68 are a powerful tool, allowing a plaintiff to serve an offer of judgment and recover post-offer attorneys’ fees if the plaintiff recovers more than was offered. The verdict here, plus prejudgment interest and taxable costs, produced a judgment that exceeded $2 million, so the plaintiff moved for attorneys’ fees. In Capriati, the Supreme Court affirmed a district court’s order awarding a personal injury plaintiff’s entire contingency fee because a “contingency fee does not vest until the client prevails.” As the client does not prevail until after the offer of judgment is served, the full contingency fee could be awarded. The district court applied Capriati and awarded “attorney’s fees in the full amount of Marin’s contingency fee agreement, totaling $818,047.02.” On appeal, Clark overruled Capriati. Clark reasoned a personal injury plaintiff incurs attorneys’ fees throughout the case but has no obligation to pay them unless there is a recovery. This is consistent with the fact that clients who discharge attorneys on contingency fee agreements are still obligated to pay for the services they receive. Moving forward, “while courts can consider the contingency fee amount in awarding attorney fees under NRCP 68, the award must be proportionate to and directly reflective of the work performed from the time of the offer.” The Court did not specify a specific method for doing so, but district courts “should determine a starting amount and make adjustments to account only for the work completed post-offer.” The Clark decision is a significant ruling for defendants. Nevada courts have consistently ruled that offers of judgment are not intended to force parties unfairly to forego legitimate claims. Excessive fee awards, “like those covering the entirety of a contingency fee agreement, risk such an effect. … NRCP 68 must hold offerees responsible for the value of the work required in continuing to litigate the case instead of settling, and no more.”

Rebecca Young (Partner-Birmingham, AL) and Caroline Pennington (Associate-Birmingham, AL) secured dismissal of all claims in the U.S. District Court, Middle District of Alabama, on behalf of Wilson Elser's Housing Authority client and several of its employees. The clients were collectively alleged to have engaged in conspiracy, fraud, and racial discrimination against the plaintiff in this case, a minority business owner. The plaintiff alleged that the Housing Authority stopped awarding his company various open-bid projects after learning his business was minority-owned. His 36-page complaint detailed the number of bidding opportunities, contract awards, and payments awarded before our client allegedly discovered that his business was minority-owned, as well as various actions taken by the Housing Authority and its employees. Rebecca and Caroline filed a dispositive motion arguing that, despite its length and factual detail, the complaint failed to state a viable claim. They demonstrated that the plaintiff did not identify which individual defendants engaged in the conduct underlying the claims, that the conspiracy allegations failed under the Intracorporate Conspiracy Doctrine, and that the plaintiff failed to adequately establish that race, rather than his failure to submit the lowest bids, was the reason he was not awarded the contracts. In response, the plaintiff argued that the pleading sufficiently demonstrated that he was denied an equal opportunity during the bidding process due to differences in how the Housing Authority communicated with other bidders. During oral argument, the court agreed that the pleading was insufficient to state a claim and ultimately granted an order in favor of Wilson Elser’s clients, dismissing all claims. 

Maryan Alexander (Partner-Baltimore, MD) will present the webinar “Litigation Management 101” as part of CLM’s 2026 Insurance 101 Webinar Series, Building a Strong Foundation in Insurance Fundamentals, to be held on July 29, 2026. Maryan’s session provides a high-level overview of the litigation process and the claims professional’s role in managing outside counsel, budgets, and case strategy. Participants will gain insight into key litigation milestones, reporting expectations, and effective collaboration with defense counsel. Ideal for those newer to litigation oversight, this session emphasizes proactive management practices that support strong outcomes and cost control.

Understanding key principles of policy interpretation and following sound drafting practices can help you reduce ambiguity, minimize costly disputes, and ensure coverage is applied as intended—protecting both your organization and your insureds. Wilson Elser’s Words Matter! is a one-page reference guide developed by our Insurance Coverage Practice attorneys to avoid issues with insurance policy and application language.