At the
conclusion of many trials, we are asked to itemize the various services we’ve provided in order that they might be included in a
cost recovery request. In the past, much of the preparation work was recoverable,
including things like preparing demonstratives, animations and videos, editing
deposition video excerpts, preparing an exhibit database and printing oversized
boards. Oddly enough, the time spent during trial actually showing the evidence
to the jury was generally not on the list.
Although
the Courts have openly appreciated and encouraged the use of technology in
trial for many years now (see Judiciary Opinions on Technology in Trial) --
even to the point of installing trial presentation equipment in our courtrooms,
associated costs to make it all happen in trial were not considered recoverable.
As a result, with top-flight trial presentation costs approaching those of a
good expert witness, it could be tough justifying the non-recoverable expense in
smaller matters.
During
HarrisMartin’s California Asbestos Litigation Conference this week, Mahsa Kashani Tippins (Gordon & Rees) and I covered
“The Use of Internet Technology in the Courtroom.” Our presentation focused on
iPad apps, trial presentation, and internet access options, but I observed
nearly everyone immediately taking notes at the mention of
Bender v. County of Los Angeles, Cal. App. 2d
Dist. (July 9, 2013) – a recent case in which trial presentation costs were
deemed fully recoverable. You can download and
view the entire opinion with this link, and here is the relevant section:
4. The Denial of Defendants’ Motion to Tax
Costs
b. Costs for trial technology
Under Code of
Civil Procedure section 1032, the prevailing party is entitled as a matter of
right to recover costs. Section 1033.5 identifies cost items that are allowable under section
1032 (§ 1033.5, subd. (a)); identifies items that are not allowable (id., subd. (b)); and
further provides that “[i]tems not mentioned in this section . . . may be
allowed or denied in
the court‟s discretion.” (Id., subd. (c)(4).) Any allowable costs must be “reasonably
necessary to the conduct of the litigation rather than merely convenient or beneficial to
its preparation,” and reasonable in amount. (§ 1033.5, subd. (c)(2), (3).) We review a
costs award for abuse of discretion.
Plaintiff‟s
memorandum of costs included a claim for $24,103.75 for courtroom presentations.
These costs consisted of “Trial Video
Computer, PowerPoint Presentation and Videotaped Deposition Synchronizing” “and
the cost of a trial technician for nine days of trial. Plaintiff used a
PowerPoint presentation in closing argument that consisted of a detailed
summary of trial testimony, documents and other evidence as well as a “comprehensive
evaluation of such evidence vis a vis jury instructions.” The costs included
charges for creating designated excerpts from deposition transcripts and video, converting
exhibits to computer formats (Tiff‟s & JPEG‟s), and design and production
of electronic
presentations. Defendants‟ motion to tax
costs challenged this item, contending case law establishes these costs
are not recoverable and that similar costs were “specifically disallowed” in Science
Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1103 (Science
Applications).
The trial
court carefully considered all of defendants‟ contentions but ultimately declined to
tax any part of these costs, explaining its reasoning in considerable detail.
In essence, the
court thought the costs should be allowed – in a case like this where attorney fees are
recoverable costs – if the services in
question “enhanced counsel‟s advocacy during the trial,” so long as the costs
were “reasonably necessary to the conduct of the litigation.” The court found both
points to be so: the synchronizing of the videotaped depositions,
for example, including the cost of
employing a projectionist to recover and retrieve the excerpts selected by counsel,
both enhanced counsel‟s advocacy during trial and was reasonably necessary to the conduct
of the litigation.
Defendants contend, based on Science
Applications, the costs at issue are “explicitly
nonrecoverable” and the trial court “had no discretion to award them.” In Science
Applications, the appellate court approved some technology costs and disapproved
others. It approved costs of over $57,000 for graphic exhibit boards and over $101,000
for a video “to help the jury appreciate the difference” between manual and
computer-assisted dispatch systems that were an issue in the case. (Science Applications,
supra, 39 Cal.App.4th at p. 1104.) It disallowed costs of $200,000 for “document
control and database for internal case management”; more than $47,000 for “the
production of laser disks „containing‟ trial exhibits”; a “graphics
communication system” with
costs of more than $9,000 for equipment rental and $11,000 for an on-site technician;
and more than $35,000 “to have videotape depositions edited for effective presentation
of the testimony to the jury.” (Id. at pp. 1104-1105.) The Science Applications
court was concerned with technology costs in “staggering proportions,” observing if
costs “are routinely awarded for high-powered technology, most parties will be unable to
litigate.” (Id. at p. 1105.)
Almost 20 years have passed since Science
Applications was decided, during which time the use of technology in the
courtroom has become commonplace (including a technician to monitor the equipment and
quickly resolve any glitches), and technology costs have dramatically declined. In a
witness credibility case such as this, it would be inconceivable
for plaintiff‟s counsel to forego the use of technology to display the videotapes of
plaintiff‟s interviews after his beating, in the patrol car and at the
sheriff‟s station, and
key parts of other witnesses‟ depositions. The court in Science Applications was “troubled
by review of a case in which a party incurred over $2 million in expenses to engage in
high-tech litigation resulting in recovery of only $1 million in damages.” (Science
Applications, supra, 39 Cal.App.4th at p. 1105.) This is not such a case. The costs at issue total just over $24,000, and
the trial court specifically found the trial technology enhanced counsel‟s advocacy and
was reasonably necessary to the conduct of the litigation. The court acted well
within its discretion in allowing recovery of these costs.
***
A Nevada
Plaintiff was recently awarded over $1 Million in trial presentation costs in a
case worth in excess of $100 Million (see
Cutting Costs in Trial), which may be reasonable, given the size of the matter and
length of the trial. The good news here is that the Court is not locking in
some arbitrary figure for the services, and neither should counsel. Actual
costs will vary depending on several factors, including the amount of data (exhibits),
special preparation needs (deposition video edits), demonstratives (graphics,
animations, charts), the length of the trial itself, and of course, the work
style of the trial team (long hours add up).
In his BowTie Law blog, Josh Gilliland shares, “I
think Bender is an important opinion, because it recognizes the reality of the 21st
Century. Human beings are visual learners. Trial presentation technology helps
jurors (and judges) understand anything from complex issues to the credibility
of a witness. Is such technology “reasonably necessary to the conduct of the
litigation”? I say yes. Modern jurors expect to see facts orderly presented,
with the factual dots connected to the jury instructions. Trial presentation
technology is vital to meeting the expectations of jurors for effective trial
advocacy.”
While there are still plenty of great excuses for going “old-school”
in trial (see Why You Should NOT Use Technology in Your Trial), if you’re inclined to win one
now and then, it could be time to reevaluate. With obvious value to all prevailing litigants, the decision in Bender v. County of Los Angeles is a significant step toward enabling and providing the benefits of
technology to those who might otherwise go without.
