Nevada Supreme Court Overrules Caselaw On Post-Trial Contingency Fee Awards

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.”

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