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Congratulations! You've won the case and your client is entitled to collect costs from its opponent. The hard part is behind you (unless your opponent appeals, of course), but collection of costs is an important and sometimes tricky task that must be handled carefully and timely. The following checklist will guide you through the process of preparing a bill of costs:
Review Federal Rule of Civil Procedure 54(d)(1).
Rule 54(d)(1) allows for payment of costs to the prevailing party in federal court actions. That Rule provides:
Except when express provision therefore is made either in a statute of the United States or in these rules, costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Such costs may be taxed by the clerk on one day's notice. On motion served within five days thereafter, the action of the clerk may be reviewed by the court.
Review the local rules of the court where the action is pending.
Always look to the local rules of the court where the action is pending to determine if the court has its own rules or procedures. For example, most courts have local rules that address motion practice - rules that require motions to include a memorandum of law, to be limited to a certain length, to contain a certificate of conferral with your opponent, or to be formatted in a particular style.
However, some courts also have more specific local rules that address particular types of motions, such as motions to tax costs. For example, Local Rule 4.18(a) of the United States District Court for the Middle District of Florida provides: "In accordance with Fed. R. Civ. P. 54, all claims for costs or attorney's fees preserved by appropriate pleading or pre-trial stipulation shall be asserted by separate motion or petition filed not later than fourteen days following the entry of judgment. The pendency of an appeal from the judgment shall not postpone the filing of a timely application pursuant to this rule."
Some courts might also require or prefer a particular form of a bill of costs. Oftentimes, courts will post forms on their web sites to assist litigants. Simply go to the court's web site, and look for a "Forms" link. Chances are, you'll find a bill of costs form that you can download.
Always remember to review the local rules of the court where the action is pending to determine if the court has its own rules or procedures for taxing costs - particularly a specific time requirement. This is a critical part of the process of preparing your bill of costs.
Determine the categories of costs that are taxable.
28 U.S.C. section 1920 sets forth the categories of costs that are taxable in federal court actions. That statute provides:
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
States typically have similar statutes to determine what kinds of costs are taxable. Remember to check court rules as well. For example, Florida has Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Florida's guidelines provide for taxation of the costs of: (1) deposition transcripts (when used for certain purposes, such as at trial or to support or defeat a summary judgment), (2) expert witness fees, (3) travel expenses of the prevailing attorney incurred in connection with taking depositions out of the city or state, (4) travel of non-expert witnesses who travel for attendance at trial, (5) witness fees for non-expert witnesses who reside out of state but attend trial and testify pursuant to arrangements made with them by the prevailing party, (6) long distance telephone calls to witnesses arranging for conferences, depositions or trial testimony, (7) Xerox or other machine produced copies, and (8) the daily copy of the trial transcript portions used for impeachment.
Review the statutes and case law that govern taxation of costs.
The United States Code contains sections that address some of the categories of taxable costs set forth in 28 U.S.C. section 1920. For example, 28 U.S.C. section 1821 addresses witness fees; 28 U.S.C. section 1828 addresses interpretation services fees; 28 U.S.C. section 1914 addresses fees of the clerk; 28 U.S.C. section 1921 addresses fees of the United States marshal; and 28 U.S.C. section 1923 addresses docket fees. There is also plenty of case law on bills of costs that sets forth what is taxable and what is not. Review the case law in your jurisdiction to determine how the courts there have interpreted the applicable statutes.
Gather your documentation to support your bill of costs.
Now that you know when you must file your bill of costs, what costs are taxable, and what form of bill of costs the court requires (or prefers), you should gather your supporting documentation (receipts, invoices, etc.), which you must include with your bill of costs. This step can be easy if you have kept track of your expenses and supporting documentation throughout the litigation. This can be as simple as routing to a single file throughout the case copies of all case-related invoices, with descriptive notes on the invoice, if necessary, to identify the purpose of the expenditure.
Sort your costs documentation into the categories of taxable costs.
Most bill of costs forms contain a line item for each category of taxable costs. You should sort your supporting documentation into the various categories, and then add the costs to so that you have a total for each category, which you can add to obtain a total of all costs.
Fill out your bill of costs.
Once you have sorted your supporting documentation and added your costs, you can begin to fill out your bill of costs by inserting the totals for each category of taxable costs. Remember, most bill of costs forms contain a line item for each category of taxable costs, so this part is easy. However, you must also attach to your bill of costs an itemization and documentation for requested costs in all categories. As an example, you could use the following itemization format:
Filing Fee / Notice of Removal
COURT REPORTER/TRANSCRIPT FEES
Transcript of pre-trial conference
Transcript of deposition of Mr. Witness
Total Cost of Each Witness
Review your bill of costs for accuracy.
Remember that a bill of costs is a submission to the court just like any other, and you should treat it accordingly. Review it for accuracy. Make sure the categories add up appropriately.
Verify your bill of costs.
28 U.S.C. section 1924 provides:
Remember, this is only a checklist to guide you through the process of preparing a bill of costs. You must always know and follow the applicable rules and case law in your jurisdiction. When in doubt, ask.
About the Author
Jaret Fuente practices in the Product Liability and Pharmaceutical and Medical Device practice groups in the Tampa, Florida office of Carlton Fields, P.A. He also focuses on defending significant personal injury and wrongful death claims. Jaret is a member of the ABA's YLD and Sections of Litigation and Tort Trial & Insurance Practice.