Now, thanks to the California Court of Appeal, the law embraces the reality of recovering trial presentation costs with a published opinion.
California law recognizes the prevailing party in litigation is entitled to reasonable costs that were “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Overturning such an award would require an abuse of discretion. Bender v. County of Los Angeles, 2013 Cal. App. LEXIS 536, 44-48 (Cal. App. 2d Dist. July 9, 2013), citing Code of Civil Procedure sections 1032, 1033.5.
The prevailing Plaintiff was awarded by the Trial Court $24,103.75 for courtroom presentations, which included the following:
Trial Video Computer
PowerPoint Presentation and
Videotaped Deposition Synchronizing
Cost of Trial Presentation Professional for Nine Days
The Plaintiff’s closing argument included a detailed summary of trial testimony, exhibits, and a “comprehensive evaluation of such evidence vis a vis jury instructions.” Bender, at *45.
The Court explained the costs included creating deposition transcript and video excerpts, converting exhibits to TIFF and JPEG and the design of the electronic courtroom presentations. Bender, at *46.
The Defendants challenged the Plaintiff’s costs, claiming the costs were “specifically disallowed” by nearly 20 year old case law. Id.
The Trial Court awarded costs, because the services in question “enhanced counsel’s advocacy during the trial,” and the costs were “reasonably necessary to the conduct of the litigation.” Id. As the Court explained:
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.
Bender, at *46.
The Court of Appeal upheld the Trial Court. Associate Justice Elizabeth Grimes said for the Court:
Almost 20 years have passed since Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1103 [46 Cal. Rptr. 2d 332] 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.
Bender, at *46-47.
Bow Tie Thoughts
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.
We live in a world where almost everyone has a smartphone that can shoot video. There is no shortage of these instant videos being Tweeted out across social media. Attorney are well-served in representing their clients by using such relevant evidence to present the case facts to a jury.
Trial presentation technology is not cost prohibitive. Getting a synchronized video deposition for an important witness is within the world of reasonable costs. Standard trial presentation software for a laptop is less than $800. There are even multiple trial presentation apps for the iPad, ranging in cost from $10 to $90. The barriers to entry for the use of such technology to “enhanced counsel’s advocacy during the trial,” are remarkably low.
Is such technology “reasonably necessary to the conduct of the litigation”? I say yes. Our jurors have no shortage of online videos and cable television dedicated to history and science. This says nothing of the crime dramas people watch for entertainment. 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.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.