In Nevada, beating an offer of judgment no longer wins the whole contingency fee

The Supreme Court of Nevada decided Clark v. Marin, 142 Nev. Adv. Op. 47, on July 2, 2026. The case is number 86592. It concerns attorney fees under Nevada Rule of Civil Procedure 68 (NRCP 68) when a plaintiff on a contingency fee obtains a verdict larger than the defendant's offer of judgment.

The court rejected the full-fee award

The court overruled Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021), to the extent Capriati allowed a plaintiff represented on a contingency fee to recover the entire fee after beating an offer of judgment under NRCP 68.

The court reversed an award of $818,047.02 and sent the matter back for reconsideration of fees under the new holding.

The opinion also contains a separate holding about when a judgment debtor's claims against an insurer become assignable. That issue is not covered here.

Marin beat a $2 million offer by $45,117.55

Marin sued Clark over injuries from a motor vehicle accident. Clark's side served a $2 million offer of judgment 24 days before trial.

The jury returned a verdict totaling $2,045,117.55. Marin therefore obtained a verdict greater than the offer.

The district court applied Capriati and awarded Marin attorney fees in the full amount of the contingency fee agreement, $818,047.02. Under the 2021 rule, beating the offer allowed a plaintiff on a contingency fee to recover the entire contingency fee.

Before publishing, the desk compared three separate write-ups of the ruling, including two law firm summaries and a law school case summary. The dollar figures and the 24-day detail matched across all three. One write-up also identified the separate holding about insurer claims, which the others left out, so this piece addresses the fee holding alone.

The 2021 rule treated the full contingency fee as earned after victory

Capriati reasoned that a contingency fee does not vest until the client prevails. Because the plaintiff prevailed after the offer was served, the full contingency fee could be included in the fee award.

The Nevada Supreme Court rejected that reasoning in Clark. The court said contingency fees are incurred as the attorney performs the work. A client who discharges a contingency lawyer remains liable for services already rendered.

The court said an award must be “proportionate to and directly reflective of the work performed from the time of the offer.” It also said NRCP 68 should hold the offeree responsible for the value of the work required to continue litigating instead of settling, “and no more.”

The concern was excessive fee awards, including awards covering the entire contingency fee agreement. Such awards risk causing parties to give up legitimate claims or forcing them to settle.

District courts must calculate post-offer work

The court did not prescribe one mandatory calculation method. District courts retain flexibility in choosing a starting amount.

They should “determine a starting amount and make adjustments to account only for the work completed post-offer.” The result must correspond to the work performed after the offer date rather than the total fee stated in the contingency agreement.

The opinion does not state what the revised fee in Marin's case will be. That determination returns to the district court.

Plaintiff-side counsel will need a dated work record

A plaintiff-side lawyer now needs records showing what work was performed after the offer date. Because the potential award tracks post-offer work, time records kept on a contingency matter carry more significance than they did under Capriati.

The relevant date is the date the offer was served. The relevant work is the work performed after that date. Records that separate the two periods can give the court a basis for calculating the award under Clark.

Because the ruling turns on one date and on which work happened after it, this is the kind of detail a matter record needs to hold. Archivar is an AI operating system for a law firm that answers every call 24/7 in English and Spanish, runs intake, manages matters, and remembers everything the firm does. Its matter management and memory of the firm's work are built to keep that kind of dated record in each matter.

Defense counsel will assess timing as well as amount

For defense counsel, the offer's service date now marks the point after which work may count toward a fee-shifting award. Pre-offer work does not count toward that award under Clark.

That can affect how counsel evaluates an offer's timing and amount. The amount of the offer remains part of the analysis because the fee-shifting issue arises when the plaintiff beats the offer.

The ruling does not state that any particular timing or amount produces a particular result. It changes the fee calculation by excluding pre-offer work.

The starting amount may become the next dispute

District courts have flexibility in selecting the starting amount and adjusting it for post-offer work. That flexibility may lead to briefing disputes over both the starting amount and the adjustments.

Counsel may need to address how the fee agreement relates to the post-offer work, which work occurred after service, and how the requested award reflects that work. Early post-Clark decisions may shape how those disputes are presented and resolved.

Whether the decision applies to fee motions in pending matters is for courts and counsel to determine. A fee motion already decided under Capriati may be reopened only if it remains procedurally open.

For now, counsel should identify the offer's service date, separate pre-offer and post-offer work in the matter record, and present any fee request using a calculation tied only to the post-offer period.