California Supreme Court:
Award of Costs for Exhibits Not Used at Trial Not Mandatory
They May Be Awarded, However, Under Discretionary Provision, Chief Justice Says
By a MetNews Staff Writer
The cost of preparing exhibits, binders and demonstratives that were not used at trial are not recoverable by the prevailing party as a matter of right but might be recoverable under a discretionary provision.
Under Code of Civil Procedure §1033.5 (a)(13), costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” The Court of Appeal for this district held on June 15, 2020, in an opinion by Justice Brian S. Currey of Div. Four, that such items are helpful, even if not used.
The Supreme Court disagreed in an opinion by Chief Justice Tani Cantil-Sakauye, writing for a unanimous court. The opinion resolved a conflict among the districts.
Currey had expressed this view:
“Counsel’s pretrial preparation of exhibit photocopies and demonstratives reasonably anticipated for use at trial expedites the proceedings. For example, it allows for efficient examination of witnesses and facilitates prompt resolution of evidentiary issues. This is especially important in lengthy jury trials, where common courtesy and respect for the jurors’ time and sacrifice requires that courts adopt policies and procedures to expedite the proceedings.
“Exhibit binders allow trials to proceed more quickly, thus they are ‘reasonably helpful to aid the trier of fact[.]’ Even if the binders contain exhibits never offered or admitted at trial, their preparation facilitates trial proceedings and helps avoid wasting the jurors’ time. Similarly, precious time is saved if counsel prepares digitized copies in advance of all potential exhibits and demonstratives. In lieu of binders, monitors are placed on the bench and witness stand, allowing the judge and the witness to view the documents. Images of admitted exhibits and appropriate demonstratives can also be viewed by the jury on large monitors, projection screens, or other devices. The alternative to preparing comprehensive pre marked hardcopy and/or digitized collection of potential exhibits is to waste everyone’s time by using the old school method: counsel fumbles about finding the desired exhibit, shows it to opposing counsel, hands copies to the clerk—including one for the judge, asks to approach the witness to show the document to the witness, ‘does so, and then proceeds with examination.”
Contradicting Currey, the chief justice declared:
“The statutory language on its face excludes unused demonstratives and photocopies of exhibits because they did not assist the trier of fact. In describing which exhibit-related costs are allowable, the Legislature used the past tense, i.e., if the items ‘were reasonably helpful’ (…italics added)—not if they ‘would be’ or ‘could be’ reasonably helpful. Because this criterion is phrased in the past tense, it conveys that the models, enlargements of exhibits, and photocopies of exhibits must have, in fact, assisted the trier of fact.”
She went on to say:
“[C]osts for models, enlargements, and photocopies of exhibits are allowable under section 1033.5(a)(13) only if they were put before the trier of fact. Demonstratives and photocopies of trial exhibits would not have assisted the trier of fact in resolving the pertinent factual issues in a case if they were never used.”
Cantil-Sakauye did not rule out an award of such costs, however, saying:
“[W]e find no indication that the Legislature intended to circumscribe the trial court’s discretionary authority under section 1033.5(c)(4) to award costs incurred in preparing demonstratives and photocopies of trial exhibits, even though they were not ultimately used at trial, when such materials are reasonably necessary to the conduct of litigation and reasonable in amount.”
That provision says:
“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”
The case is Segal v. Asics America, 2022 S.O.S. 106.
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