For those of you who rely heavily on trial technicians and courtroom technology, a 2013 case on CCP Section 1033.5 is important to know about because it enhances your ability to recover trial tech costs.
Every year, technology becomes an increasingly important part of case presentations. In a piecemeal fashion, courts are steadily catching up to this 21st-century reality and beginning to recognize that tech-related trial costs are legitimately recoverable.
Any attorney who wins a case at trial and sits down to fill out his or her cost bill has likely gone through the process of realizing that the allowable costs under CCP Section 1033.5 are kind of random. This section, which specifies allowable costs following trial, allows for some costs that many attorneys have probably never heard of, much less incurred, such as “expenses of attachment including keeper’s fees,�? while it excludes important items like “transcripts not ordered by the court.�? However, §1033.5 has the “catch-all�? provision for “items not mentioned in this section�? that may be awarded in the court’s discretion.
Oftentimes, the net effect of §1033.5 is to prevent attorneys from recovering a large share of their actual costs of trial. This discrepancy has only increased in the last 20 years with a fundamental change in trial from predominately paper oriented, to predominately multimedia and visually oriented for juror understanding and engagement. While the tech in courts changes on a yearly basis, the right to recover for such tech has been lagging far behind.
In 1995, when the “World Wide Web�? was but a couple of years old, the court in Science Applications was faced with a case where the prevailing party incurred over $2 million in expenses to win $1 million in damages. In traversing this thicket of expenses, the court allowed such costs for a $100,000 video and $57,000 in demonstrative graphics, but rejected the claim for the “trial tech” costs of “$250,000 for various document management and video editing work” (p. 1104). The Science Applications court held that none of these expenses were recoverable under §1033.5. In particular, the court disallowed editing of video depositions, noting that “the existence of the alternative but mundane method of reading aloud strongly suggests the editing ‘was not reasonably necessary to the conduct of the litigation,’ however ‘convenient or beneficial’ it may have been. (§ 1033.5, subd. (c)(2).)�? (Id.)
Following a ruling last summer, prevailing attorneys have a much better argument to recover trial tech expenses. In Bender v. County of Los Angeles, Cal. App. 2d Dist. (July 9, 2023), defendants argued that “based on Science Applications, the costs at issue [were] ‘explicitly nonrecoverable’ and the trial court ‘had no discretion to award them.’�? Yet again proving that telling a court they have no power to do something is not a good strategy, the trial court disagreed and awarded $24,103.75 for “Trial Video Computer, PowerPoint Presentation and Videotaped Deposition Synchronizing.�? Most such costs were specifically disapproved in Science Applications.
The Court of Appeal in Bender agreed with the trial court’s award, holding:
“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. . . 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.” Bender (p. 991.)
With this decision, the Bender court removes the argument that such trial tech costs are “not recoverable as a matter of law�? as claimed by the defendant. Rather, such costs are properly within the discretion of the court to award if “reasonably necessary to the conduct of the litigation.�? This decision restores the balance and discretion of the trial court to examine these costs on a case by case basis and determine if they enhanced the litigation and result for the prevailing party.
The benefit of this decision is to allow prevailing attorneys a much greater chance of recovering the cost of hiring people to come in and run the trial presentation software.
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