The Bender Trial
Bender involved a civil lawsuit against two sheriff’s deputies for an unlawful arrest and assault of the plaintiff. The court’s opinion details the abuses Bender suffered during his arrest; he was beaten so badly that he lost consciousness. The deputies interviewed Bender on videotape in their patrol car, where his injuries were visible. Bender was also interviewed on videotape by a lieutenant at the police station, where he maintained that he was arrested and beaten without cause or provocation.
During the trial, the plaintiff’s attorneys played both of these videotapes for the jury. The plaintiff’s counsel also played parts of witness depositions and, in closing argument, used a PowerPoint presentation that provided a “comprehensive evaluation of [the evidence presented] vis a vis jury instructions.”
The jury found in Bender’s favor and awarded him damages and attorney fees. Additionally, the court awarded $24,103.75 for courtroom technology and the cost of a technician. The deputies appealed.
Costs Recoverable under California Statute
Under California Code of Civil Procedure Section 1032(b), a prevailing party is entitled to recover his costs as a matter of right. Section 1033.5 outlines the types of costs that are permissible, including “[m]odels and blowups of exhibits and photocopies of exhibits . . . if they were reasonably helpful to aid the trier of fact.” The section also permits a court to award costs that are not otherwise mentioned in the section with the caveat that “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”
Necessary Use of Technology
In affirming the trial court’s award of costs, the appellate court 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 court distinguished Science Applications International Corporation v. Superior Court, a nearly 20-year-old case in which defendants had relied to exclude Bender’s technology costs. In Science Applications, the court disallowed certain technology costs that amounted to more than $2 million. The Science Applications court determined that this technology was glitz—i.e., a “high tech paralegal” and “a high-powered way of retrieving documents”—without tangible benefit. In Science Applications, the prevailing party incurred over $2 million in technology expenses for a trial that yielded only $1 million in damages.
Since 1995, when Science Applications was decided, “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,” as noted by the Bender court. In the case before it, the Bender court found that the technology used enhanced counsel’s advocacy and was reasonably necessary to the litigation, rather than merely convenient or beneficial.
Increased Use of Technology in the Courtroom
“The Bender court explicitly recognizes that trial technology is helpful,” says John P. Hutchins, Atlanta, cochair of the ABA Section of Litigation’s Technology for the Litigator Committee.
Indeed, “in the courts, we are certainly seeing an increased use of technology,” says Hon. J. Michelle Childs, Greenville, SC, U.S. District Judge and cochair of the Section of Litigation’s Trial Evidence Committee.
An award of costs for trial technology, though not yet the norm, is not unprecedented. For example, in Goss International Corporation v. Tokyo Kikai Seisakusho, Ltd., a federal court in Iowa awarded $73,000 in costs for demonstrative exhibits, including charts, graphs, and videotaped depositions. The award was justified “given the complexity of the issues presented at trial and the enormous amounts of information presented to the jury during trial.” In Cefalu v. Village of Elk Grove, the Seventh Circuit found that the cost of multi-media presentations was recoverable.
“With juries now increasingly populated by millenials, it is necessary—not merely convenient—to use technology in the courtroom to communicate with a jury in the way that they are accustomed to receiving information,” says Hutchins.
In a media-saturated world, “we are used to receiving information almost instantaneously,” says Childs. “Jurors are no different and they appreciate—if they do not yet expect—that complicated issues might be better explained using technology.”
Whether technology is “reasonably necessary” rather than “merely convenient or beneficial” will require a fact-finding process on a case-by-case basis, says Childs. “The distinction in the terms appears to suggest that trial technology should be used to help the fact-finder to discern the truth in an expedient manner,” says Childs, “and not simply award creativity.”
Natasha Saggar Sheth is an associate editor for Litigation News.