I respectfully dissent for two reasons. First, in my view the trial court erred in shifting any costs since the Code of Civil Procedure section 9981 offer was not unconditional as required by that statute. Second, assuming it were appropriate to shift some costs, the court erred in failing to take account of appellant’s means in setting the amount of the award.
I. The Offer Was a Joint Offer Conditional on Acceptance by All Plaintiffs and Thus Invalid Under Section 998.
In my view the section 998 offer in this case was conditional and its rejection therefore cannot serve to shift the costs of defendant’s expert witnesses to appellant. The offer was conditional because it required acceptance by all three plaintiffs. As such, it is not effective to shift costs under Hutchins v. Waters (1975) 51 Cal.App.3d 69, 73 [123 Cal.Rptr. 819] and Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791 [260 Cal.Rptr. 826].
My first problem is with the fact respondent did not serve a separate section 998 offer on each of the three plaintiffs. Instead it combined the three offers in a single joint document and served it on the attorney who happened to be representing all plaintiffs.
Hutchins dictates before a party can claim the benefits of cost shifting, it must be shown that party “served an unconditional offer in writing upon any other party to the action, or to each of several other parties to the actions.” In my view, this language clearly requires that in multiplaintiff litigation the defendant must serve a separate offer on each individual plaintiff, even if all plaintiffs happen to be represented by the same attorney. Not only is this requirement compelled by the language of the statute, but it serves important policies. This rule is the only way to ensure each offer is individual to a given plaintiff and can be accepted by that plaintiff even if the others reject their offers. Furthermore, it is the best way of avoiding any ambiguity whether each of these offers is unconditional and not dependent upon acceptance by all parties. Indeed the instant case is a good example of what happens when the offer is a combined offer to several parties.
*127A still more fundamental objection, however, is the nature of the offer embodied in this single document. At many critical places, the offer is written in the plural and the conjunctive. Indeed it is not only a tenable but a most reasonable inference the document sets forth a joint offer to all three plaintiffs and that all three plaintiffs had to accept the offer. The only instance where the offer does not speak in the plural is where it apportions the total amount among the plaintiffs, setting it at $100,000 to each plaintiff.
When read in context the offer to compromise looks clearly conditional. For example, in its most critical passages, the document states defendants “hereby offer that plaintiffs . . . take judgment against them in the following amounts” and “plaintiffs may file a proof of acceptance.” The proper inference is the offer must be accepted by all three plaintiffs. This inference is reinforced by other portions of the document. The first reference to the plaintiffs is to all three, Mr. Velona, Mr. Cochrane and Mr. Santantonio. The numbered paragraphs apportioning the section 998 offer at $100,000 each are also stated in the conjunctive. The only other reference to the plaintiffs or to any of them is collective, stating the “Plaintiffs” [plural] “may file a proof of acceptance" [singular]. The plaintiffs had to act together to accept the section 998 offer, rendering it conditional and, therefore, invalid for purposes of assessing costs against any of the plaintiffs under Hutchins.
The majority is prepared to dismiss this entire argument because “. . . the record on appeal does not reveal that this issue was raised in the trial court.” (Maj. opn., ante, at p. 113.) However, the interpretation of an integrated instrument or writing is a question of law, as is the interpretation of a statute. (9 Witkin, Cal. Procedure, Appeal § 242 (3d ed., 1985); Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 CalJRptr. 767, 402 P.2d 839]; Estate of Butler (1988) 205 Cal.App.3d 311, 317 [252 Cal.Rptr. 210].) Accordingly, whether the section 998 offer was valid on its face may be reviewed de novo in this court. Extrinsic evidence would have been irrelevant if tendered in the trial court. Consequently, any failure to raise this particular issue below does not deprive this court of any information required to properly interpret the document presenting this section 998 offer.
II. This Award and Like Section 998 Awards Threaten to Distort Litigation Incentives and Behavior Unless Scaled in Size to the Comparative Economic Resources of the Competing Litigants.
Even if I agreed it was appropriate to shift some costs to appellant pursuant to section 998, I would reverse and remand for reappraisal of the amount of the costs which properly could be shifted. In my view, the trial *128court erred in failing to assess appellant’s economic resources and to include that factor in its calculation of the cost award. Unless trial courts include this factor in setting the costs to be shifted under section 998, they will distort settlement incentives and unduly discourage individual litigants from pursuing reasonable courses of action in the courts.
There is no doubt cost shifting performs a major purpose in the section 998 process. It gives the party receiving the offer an added incentive to behave reasonably. Reasonable behavior means accepting a reasonably generous offer. But it also means rejecting an unreasonably stingy one. To encourage reasonable behavior, therefore, the amount of the costs which may shift also must be reasonable. Not just reasonable in absolute terms, but reasonable in comparison with the resources of the offeree. If modest income litigants are required to risk the imposition of $100,000 in costs if they reject a section 998 offer, they will feel compelled to accept any such offer, even if it is far below what they have a reasonable prospect of winning at trial. Particularly if the opposing party is a large institution, as it was here, the average person can’t afford to gamble. It is like going to a casino and entering a no limit game against the “house” with only one week’s paycheck in the bank.2
*129The courts have recognized the need to adjust cost assessments to the parties’ means in other contexts. For example, this court in In re Marriage of Norton (1988) 206 Cal.App.3d 53 [253 Cal.Rptr. 354], held family courts are required to determine the parties’ comparative financial resources before shifting legal fees from one to the other, even when the reason for the shift is to encourage the parties to behave reasonably during the litigation. In Norton, the trial court found the wife had behaved unreasonably during settlement negotiations with her husband and in other proceedings before the court. A then newly enacted provision, Civil Code section 4370.5, authorized family court judges to require spouses who had behaved unreasonably to pay the legal fees their spouses incurred as a result. Using this law, the court shifted a part of the husband’s legal fees to the wife, but only after being careful to determine the parties were of equal means.
This court affirmed the shift of legal fees from the husband to the wife. But we took care to emphasize we would have reversed if the trial judge had not ascertained the wife’s economic situation before placing this burden on her. We held this was a requirement, despite the fact Civil Code section 4370.5 at that time failed to mention anything about the respective needs or financial resources of the competing litigants.3 As we explained:
“The purpose of Civil Code section 4370.5 is to encourage reasonable litigation and settlement behavior in marriage dissolution proceedings. The purpose is not to cause undue hardship nor to discourage parties from pursuing meritorious actions. Therefore, the other party may not be entitled to an award of all fees and costs he or she expended in the proceedings.”
“Less affluent parties, typically wives, may be unduly discouraged from vigorously prosecuting legitimate claims and defenses if they face the prospect of having to pay substantial cost and fee awards to the other side. This problem will be compounded if there is a gross disparity of resources. The other side will not feel the same inhibitions since this wealthier party will not find it nearly so hard to pay any award the court may impose for its litigation behavior. This creates an imbalance in the incentives to behave appropriately during settlement negotiations and litigation. Economic analysis suggests the less affluent party will behave too timidly during litigation and accept unfavorable settlement terms when facing a party who is less concerned about the possible economic disincentives of taking a hard line. (See Covenant Mutual Ins. Co. v. Young (1986) 179 Cal.App.3d 318, 325-327. . . , and authorities cited therein.)” (In re Marriage of Norton, supra, 206 Cal.App.3d 53, 59-60.)
*130In a pair of recent decisions, appellate courts also have recognized trial courts must take account of a party’s economic status before imposing other litigation costs on them. Both of these cases arose when trial courts ordered discovery matters to be heard by “private judges” pursuant to sections 639 and 645.1. As is typical in such “references,” the court ordered the parties to divide the private judge’s fees for performing this task.
In the first case, Solorzano v. Superior Court (1993) 18 Cal.App.4th 603 [22 Cal.Rptr.2d 401], one of the parties was indigent. The appellate court reversed the order, holding the indigent party could not be compelled to pay these fees because of the state’s in forma pauperis provisions. The second case, McDonald v. Superior Court (1994) 22 Cal.App.4th 364 [27 Cal.Rptr.2d 310], involved a person of modest means rather than an indigent. In an opinion which resonates in this case, the court emphasized cost assessments cannot be used to discourage middle class citizens from having effective resort to the courts either.
“As stated in Solorzano in discussing in forma pauperis plaintiffs: ‘Fees of $200 to $300 per hour charged by privately compensated discovery referees allow affluent litigants to avoid discovery compliance by pricing enforcement of legitimate discovery demands beyond the means of indigent plaintiffs. This advantage based on wealth flows directly from the trial court’s order imposing equal division of fees between indigent plaintiffs and an adverse litigant of far superior financial means.’ [Citation.] The same policy considerations apply where one party has financial resources far superior to an opposing party who, while not proceeding in forma pauperis, has clearly limited financial means.” (McDonald v. Superior Court, supra, 22 Cal.App.4th 364, 369, italics added.)
Just as trial courts must avoid imposing unreasonable discovery costs on modest income litigants they must avoid shifting other types of unreasonable litigation costs to those same litigants if the litigation process is to be fair and to produce just results.4 In order to properly balance litigation incentives to produce fair and reasonable settlements under section 998, the amount of the fees shifted must be scaled to be proportionate to the comparative financial resources of the competing parties. The prospect of a $100,000 cost shift may represent a reasonable incentive to accept a section 998 settlement offer if the offeree has ample resources. For persons of only modest means, *131however, that $100,000 will loom as a terrifying threat, one calculated to distort their decisionmaking and force them to cave in to unreasonably low section 998 offers.5 Since the trial court made no inquiry into appellant’s financial status, we do not know for sure whether $100,000 was a reasonable disincentive for someone like appellant or whether the amount of this cost shift must be scaled back in order to avoid irrational and unfair results in this and future litigation. (On the other hand, we do know one of the other three plaintiffs in this case had to declare bankruptcy, presumably in whole or in part because of the threatened assessment of the $100,000 in costs.)
Civil Code section 4370.5 construed in Norton and sections 639 and 645.1 construed in Solorzano and McDonald expressly allow the trial court discretion in imposing fees, costs, or other expenses on litigants. In both instances, appellate courts have held trial courts abuse this discretion if they fail to take account of the adverse impact substantial cost shifts visit on the average citizen who is trying to use the courts. Similarly, section 998 confers discretion on trial courts in deciding whether and how much of expert witness fees and preoffer costs an unsuccessful litigant must pay. That section provides: “[T]he court, in its discretion, may require the plaintiff to pay the defendant’s costs from the date of filing of the complaint and a reasonable sum to cover costs of the services of expert witnesses, . . . actually incurred and reasonably necessary in either, or both, the preparation or trial of the case . . . .” (§ 998, subd. (c), italics added.)
The bulk of the costs the trial court shifted to appellant in this case consisted of expert witness fees.6 Under the terms of section 998, the trial court had discretion to refuse to shift these fees at all. Moreover, since the *132amount shifted for this purpose is to be “a reasonable sum” the trial court also had discretion to reduce this element of the cost award to a sum below what respondents reasonably paid for expert witness services. Construing comparable laws, Norton, Solorzano, and McDonald held it was proper, indeed essential, that trial courts in exercising their discretion determine how the proposed cost shifting would affect the litigant who would be paying those costs not just whether the costs were otherwise reasonable in amount.
What this court said in 1986 about Civil Code section 4370.5 applies with equal force to section 998. “Nothing in the language of section 4370.5 [nor of section 998] suggests it is designed to encourage unfair settlements or inappropriately timid litigation behavior. Indeed it is entirely consistent with [either of these code sections] for trial courts to take account of the comparative wealth of the competing litigants and the effect of wealth disparities on litigation behavior when they fashion any fee and cost awards they may impose pursuant to [these sections]. What is a reasonable award for one party . . . may be unreasonable if imposed on the other. For, unless trial courts ‘scale’ any such awards to the comparative wealth of the parties they may discourage the economically weaker party from filing actions she or he should and from pursuing those actions with the vigor they deserve.” (In re Marriage of Norton, supra, 206 Cal.App.3d 53, 60.)7
Since section 998 so clearly allows trial courts discretion to take account of these considerations implicating fairness and litigation behavior when deciding cost shifting awards, I find it unnecessary to discuss a statute not now before us, one which mandated substantial cost shifting against unsuccessful litigants. Suffice it to say, in my view such a law would raise grave constitutional issues. For reasons discussed above and at greater length in Covenant Mutual, supra, and Norton, supra, there is great danger such a *133provision would deny the average citizen the access to the courts which due process and equal protection of the laws guarantee. It would make California’s regular civil courts the exclusive province of litigants with the resources to play a high stakes game of litigation poker.
There is another reason we should be especially careful to ensure cost shifting under section 998 is not permitted in amounts which might discourage plaintiffs from filing and vigorously pursuing litigation of the type involved in this case. Appellant and his fellow plaintiffs brought this case under civil rights statutes designed to enforce government policies against age discrimination. Allowing section 998 cost shifting in amounts which distort settlement incentives is counterproductive to the governmental purpose of encouraging what typically are modest income individuals to pursue private relief under these laws. By sanctioning such cost shifting, courts discourage those same modest income individuals from seeking relief and thereby from enforcing those important public policies against discrimination.
To sum up, I would reverse this cost shifting award outright based on the fact it was the product of a conditional section 998 offer which required or appeared to require the acquiescence of all three plaintiffs. But assuming the section 998 offer were proper, I would reverse and remand for a determination whether the amount of that award was proper. I would instruct the trial court to reconsider that question in light of its impact on litigation between average Californians of modest income and economically powerful institutions or individuals.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
In Covenant Mutual Ins. Co. v. Young (1986) 179 Cal.App.3d 318, 326-328 [225 Cal.Rptr. 861], this court discussed some of these economic incentives in a different context, a one way fee-shifting statute. The basic principles, however, remain the same. The average individual considering litigation or involved in litigation is “risk aversive,” indeed cannot afford to be anything else. Institutional litigants and other “repeat players,” on the other hand, can afford to be “risk neutral” and indeed against individuals often can adopt a “risk preference” strategy. This means the average individual, when confronted with a litigation choice which carries a risk that costs will be shifted should that individual lose, will accept an unreasonably unfavorable offer in order to avoid that risk.
Even if the “expected value" (damages sought multiplied by probability of obtaining those damages) of a case is $200,000 or more individual litigants might well feel compelled to accept an offer of $100,000 or less just because they are risk averse and unwilling and unable to accept the risk of having to pay $100,000 in expert witness fees to the other side if they lose. Indeed for many individuals of modest means the risk they might be required to pay the other side $100,000 in costs should they lose will dissuade them from filing a case in the first place. As one economic analyst observed, “given risk aversion and the diminishing marginal utility of income and wealth, the threat of having to pay the other side’s fees can loom so large in the mind of a person without considerable disposable assets that it deters the pursuit of even a fairly promising and substantial claim or defense.” (Rowe, Predicting the Effects of Attorney Fee Shifting (1984) 47 Law & Contemp. Probs. 139, 153.)
Even if they do embark on the litigation modest income litigants may well feel compelled to drop the case when that cost-shifting possibility appears during the course of the proceedings. Lacking the resources to absorb this kind of financial burden, they would feel compelled to accept a nominal sum, or nothing. It is as if in the final hand of a poker game with everything in the pot the “house” suddenly raises the ante to an amount most players can’t afford. No one would regard that as fair. In the world of litigation, it is not only unfair. It leads to unjust and economically unjustified settlements.
Subsequent to our decision in Norton, the Legislature amended Civil Code section 4370.5 to include express language requiring courts to ascertain the parties’ respective means before setting the direction and amount of any fee shifting under that code section.
Notably, the McDonald court held it was unfair to impose costs of a few hundred or at most a few thousand dollars on modest income litigants. In the instant case, we are considering the effect of imposing $100,000 or more in costs on this same class of litigants. Obviously, the concerns which led the McDonald court to prohibit discovery references when modest income litigants are involved, apply with much greater force to massive cost shifting awards granted pursuant to section 998.
There is empirical support for this proposition in a study of the English version of California’s section 998 procedure, which in that country is called the “payment into court” system. As is true under section 998, a plaintiff must obtain a judgment more favorable than the defendant’s statutory offer or suffer the consequence. In England, however, that means paying the defendant’s reasonable legal fees as well as costs. The study revealed that out of a sample of 664 personal injury cases studied in four cities, 41 percent involved a payment into court. In fully 90 percent of those cases the plaintiff accepted the “payment in” money the defendant tendered. In virtually all the remaining 10 percent, however, the cases where plaintiffs had the courage to refuse the “payment in” and went to trial, they received damages larger than the amount paid in. This led the author of the study to conclude many of those who had accepted the “payment in” also would have won more at trial than the figure they settled for, but decided against trial because they could not afford to risk the possibility of having to pay the defendant’s fees and costs. (Zander, Costs of Litigation—A Study of the Queen’s Bench Division (June 25, 1975) Law Society’s Gazette 680; Zander, Is the English Payment-Into-Court Rule Worth Copying? (1976) 40 Rabels Zeitschrift 750.) This study is discussed in Cappelletti and Garth (edit.), Access to Justice: Emerging Issues and Perspectives (1979) pp. 44-46, 54-56.)
Since I consider the two alternative grounds argued in this dissent more than sufficient to justify reversal of this cost award, I do not discuss yet a further reason for reducing the expert *132witness component of the award. A substantial percentage of that award represents payments to nonexperts who compiled and analyzed data respondents’ experts used in preparing and giving their testimony. It is not at all clear to me these payments to nonexperts fall within the statutory definition of “costs of the services of expert witnesses” entitled to recompense under section 998.
In footnote 7 of the majority opinion, it is conceded the trial court had discretion “to consider a party’s ability to pay costs.” This footnote, however, then suggests it somehow is beyond the role of the appellate judiciary to require trial courts to consider this factor when exercising their discretion to set the amount of cost awards under section 998. If so, this court exceeded its role in Norton as did the courts which decided Solorzano and McDonald. As discussed above, in all three of these cases the appellate courts imposed a requirement trial courts consider this factor when exercising their discretion, even though it was not explicitly mentioned in the statutes at issue in those cases. I suspect there are literally thousands of appellate opinions, some of them written by my Division Seven colleagues, spelling out factors which trial courts are expected to consider when exercising their discretion under various statutes, even though those factors are not mentioned explicitly in the statutes themselves. Indeed this is one of the primary functions of the appellate courts.