Originally published in the
February 2014 edition of Los Angeles Lawyer
By Ted Brooks
NOTE: The article below shows the progressive attitude of the L.A. Superior Court system. Another example is taking place in a downtown trial in which I am currently involved, where we are publishing all of the evidence electronically. There is a full hard copy exhibit binder set in the courtroom, but they have only been used a couple times. Prior to an exhibit being admitted, the witness, Court and counsel may all view the document on their monitors. Once it has been admitted, it is then published to the jury on their large monitors. In this scenario, the pace of the trial is increased exponentially, as everyone sees the exhibit immediately, rather than searching through the binders for the correct exhibit and page, and distributing several copies. This can easily offset costs for trial presentation. And if you happen to be on the winning side at the end of the trial, these costs may be fully recoverable.
LOS ANGELES COURTS are once again
on the cutting edge of technology; this time in the decision of Bender v.
County of Los Angeles, a recent case in which trial presentation costs were
deemed fully recoverable. In the past, much of the preparation work for trial
has been recoverable, including demonstratives, animations, videos, video
editing, 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, even to the point of
installing trial presentation equipment in many of our courtrooms, associated
costs to make it all happen in trial were not specifically addressed.
In a
subsection of Bender devoted to assessing the costs for trial technology, the
court wrote:
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 [and] items that are not and further provides
that items not mentioned in this section may be allowed or denied in the
court’s discretion. 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. 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, Power-
Point 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 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.
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. 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. 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.
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. 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.
With obvious value to all prevailing litigants, the
decision in Bender is a significant step toward enabling and providing the
benefits of technology to many who might otherwise go without.
See Bender v.
County of Los Angeles, 2013 Cal. App. LEXIS 536 (Cal. App. 2d Dist. July 9,
2013), available at http://scholar.google.com/scholar_case?case=9726075070974722474&hl=en&as_sdt=6&as_vis=1&oi=scholarr
