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What amount is appropriate for you to spend on trial technology in a case where you expect to recover fees and costs?
The question is an odd one. How do you decide if you are using too much technology during your trial–so much that a court could disallow all of the costs during a motion for attorney fees? I don’t know the answer to that question. You probably don’t know the answer to that question until you are fully prepped for trial. Correction: maybe you don’t even know the answer to that question until you are at trial, or until you win the trial.
Of course, you are obliged to try and control costs to your client, and you’re obliged not to inflate your fees and costs to the court. But it is tough to talk about fees in the context of trial support technology because we don’t have good metrics yet for talking about how much it should cost.
The Legal Profession Blog reports that roughly $20,000 in trial technology costs were disallowed in a case that involved an injury to a minor at a day care center. The court decided that the level of technology used, while it may have been helpful to the attorney and the plaintiff, was not necessary for the jury to render their decision.
This was not a complicated trial. The highly sophisticated, and clearly very expensive, all-day-every-day availability and sometime use of technical support was, presumably, useful to Plaintiff, but was not at all necessary for the jury’s consideration of the material presented. It cannot be considered a reasonable cost under 10 Del. C. § 8504.1
In the same case, the court had no trouble awarding close to $5,000 in costs for two experts who testified for a total of six hours and had hotel and travel costs.
There’s no indication in the order as to whether there was some less-expensive use of legal tech the court might have considered reasonable. Additionally, pegging it to the helpfulness to a jury is an odd way of thinking about tech, because it presumes that is a quantifiable thing. Arguably, in a case involving personal injury, technology that helped reproduce the scene or give context to how the injury arose would be helpful to a jury. Many attorneys use trial tech because it enhances their ability to present their case in ways the jury never sees or would ever need to be cognizant of. It’s not unheard of for attorneys to use relatively sophisticated tools to keep track of their material during trial, which is something that certainly helps an attorney frame a persuasive and winning case, but not something the jury would ever notice.
Now, the $20,000 at issue here might have been an absurd cost. Perhaps the plaintiff’s attorneys didn’t do a good job explaining what the technology was and how it was used. The language about the use of “technical support” implies that some of the costs might have been due to the plaintiff’s attorney keeping IT personnel on standby to ensure that the technology ran smoothly, and that may be over-the-top for this particular case. Even if that was true, however, throwing out all tech costs seems excessive.
Of course, this is only one case in one jurisdiction, but it highlights something that is an ongoing problem: if you have judges that don’t understand how technology works, you’ll have judges that undervalue the benefit of that technology. Hopefully, the next time a case like this comes around (and it will), the attorneys will be better able to frame why the use of the technology was vital to their case or the judge will be able to explain better why the costs were excessive.