Don't Want Trial Technology?

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