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Who thought the law would ever keep up with technology!?! Up until recently the debate over whether a party can recover trial technology costs after prevailing at trial has been just that – a debate. And it was a losing one for attorneys who chose to use technology to present their cases. Without specific statutory guidance, California law has largely left open the question of whether or not tech costs are recoverable. As a result, many lawyers have shied away from using trial technology and visual strategies to explain their cases, dismissing the idea as overkill or even out of budget. Those lawyers have reason to re-consider in light of both recent court decisions and the general change in judicial attitude to allow recovery of these costs.
The Code is Ambiguous on Technology Costs
The costs a prevailing party may recover after a victory at trial are outlined in Code of Civil Procedure Section 1033.5. This section allows for the recovery of, among other items, the costs for service of process, deposition transcripts, and exhibits if they were “reasonably helpful to aid the trier of fact.” The section also provides a comprehensive provision for items not mentioned in this section (such as technology costs) that may be allowed or denied in the court’s discretion. As a result, the decision is made by the court on a case by case, judge by judge, trial by trial basis. With little guidance, why take the risk of incurring these costs if you cannot be certain you will recover them, even if you win?
Case Law Offers New Insights
The case of Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968 provides some clarity. This lone case offers direct appellate authority for attorneys to rely upon when seeking to recoup technology costs that were perceived to be previously unavailable. In Bender, the California Court of Appeal affirmed a trial court’s award of costs for trial presentation expenses including the use of a PowerPoint presentation, video synchronization, as well as the attendance of a technician during the trial.
In Bender, the plaintiff sued the County of Los Angeles and several officers for unlawful arrest and assault. The plaintiff’s attorneys used post-incident video of the plaintiff demonstrating his injuries as well as key clips from videotaped depositions of the officers impeaching them on the stand with inconsistent testimony. In affirming the Trial Court’s award of costs, the 2nd District Court of Appeal noted that, “in a witness credibility case such as this, it would have been inconceivable for plaintiff’s counsel to forego the use of technology.” The Bender Court also distinguished Science Applications International Corporation v. Superior Court (1995) 39 Cal.App.4th 1095, which the defendants relied on to argue for exclusion of Bender’s technology costs. In Science Applications, the court disallowed certain technology costs that exceeded $2 million, concluding that this technology amounted to a “high tech paralegal” and a “high-powered way of retrieving documents,” with no tangible benefit. In distinguishing Science Applications, the Bender Court held the following:
“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.”
The decision in the Bender case was welcomed by those trial practitioners who employ recognized methods of technology and visual strategy to present their case. Jurors are people too and as such, they generally process and assimilate information visually. A jury has weeks, many times only days and hours, to assimilate large volumes of information the attorneys and parties have lived with for a year or more during the span of a case. Thus, it is critical for the trial practitioner to make key points supporting his case extremely cogent and digestible in a short period of time.
While Bender certainly gives some level of comfort as to the collectability of trial technology costs it is not the end game. As of this writing, and to the author’s knowledge, it is the lone decision in California addressing this issue. Since it is an appellate court decision, reviewing a trial court ruling using the abuse of discretion standard of review, it is far from binding authority. As a result, the trial practitioner is still left to wonder whether such sunk costs (which can often be substantial on long cause cases) will be awarded and collected.
But there is positive news. Even though we lack further case law citing to or relying upon the ruling in Bender, at the local trial court level, the judicial tide is turning. The construction of new court houses equipped with “plug and play” setups, reducing the need for mounds of equipment and set up, is encouraging. Moreover, litigation attorneys can hardly search the CLE calendars of local organizations without seeing offerings regarding the use of trial technology. Almost every one of those panels includes judges touting the use of, and best practices for the use of, technology in their court room. As a regular consumer of such CLE presentations, this author has noted that recovery of these expenses is rarely, if ever, addressed. One would think that if the use of technology is encouraged, and in some cases even demanded by the court, that the logical corollary would be a judicial attitude towards allowing recovery of such costs.
In our experience, this is just what we are seeing as a company. In a recent case, here in San Diego Superior Court, Collello v. Hoeharn, where Litivate was retained to provide a trial technician, the court allowed recovery of the tech costs as a result of the direct utility in the court room. In Collello, the plaintiff sued for damages after part of a tree fell on her at her apartment complex. The tree had blown over during a winter storm and the injury occurred when several individuals were working to try to remove it. The number of defendants and the extent of legal liability was extremely complex. There were several persons from the property owner, property management company, tree removal service, handy men, and other unrelated individuals who were all participating in the tree removal and all of whom had some level of responsibility. As one might imagine, all defendants pointed fingers at one another. Adding to the issue, there were indemnity agreements, agency agreements, management contracts, oral agreements, and many other documents to sort through to make sense of just who was responsible for what. In awarding costs for our visual display which assisted the jury in its finding for the plaintiff, on the issue of whether the technology was helpful to the trier of fact in the litigation, the court observed:
“Let me ask, when we look at the standard of reasonably necessary to the conduct of the litigation and Mr. Thorsnes’ Litigation Services bill, a couple of thoughts. And in the case cited, there were technological problems. And I think Mr. Thorsnes did a great job. I don’t recall any technological problems. I think Mr. Simpson in trying the case relied heavily on him. I do recall the blowup and different angles of the tree, and it really worked seamlessly, as I recall…[A]s these types of services go, it’s pretty much at the top level of quality. In other words, it’s not someone — and I’ve had — I’ve had plenty where we’re stumped from a technological point of view by someone that’s brought in and hired independently. Many times, it’s within counsel’s own office, but a lot of technological problems. This was not that case. Mr. Thorsnes clearly is extremely qualified and capable and performed in that — in that way.”
Trial Technology is Moving in the Right Direction
In addition to the Collello, matter, Litivate has been involved in several other cases in which the trial technology costs were recoverable. The message is clear: the trial practitioner should give more weight to the use of trial technology in his or her case where the sense is that the use of electronic visual display will assist in winning the case. The odds appear to be swinging in favor of collecting these costs upon successful verdict.< Back to Blog