Photograph by Maura Teague
Notwithstanding the familiar meme of “run-away juries” and “frivolous lawsuits,” both of which exist but as flukes, statistically weak anomalies, our legal system generally short-changes the vast majority of meritorious litigants (whether plaintiffs or successful defendants). As discussed in the immediately preceding post (below), for example, many types of damages and harm are deemed “speculative” and, therefore, are not recoverable. If you are a civil plaintiff who has lost $X due to a defendant’s wrong-doing, it is extremely unlikely that you will net $X even if you sue and win.
You might win your lawsuit and, as the prevailing party, you might be entitled to your “costs,” which will undoubtedly be welcome news but there are two problems.
First, as all litigators (but surprisingly few clients, in my experience) know, “costs” do not include any of the client’s attorneys’ fees. Being able to recover “costs” but not “attorneys’ fees” is a bit like being allowed to feast at an all-you-can-eat buffet for $1, but being required to serve yourself with tweezers on a dime-sized plate. What first appears to be a sweet deal is, on further inspection, a rip-off.
Second, “costs” not only exclude “attorneys’ fees” — the big ticket cost (as most people understand the word “cost”)– they also exclude quite a lot of other things that people (and even trial lawyers) would normally think of as costs.
Here is a litigation loser’s brief chipping away at a prevailing defendant’s bill of costs (litigation that was the subject of a recent post linked here).
And here is my question for Minnesota Litigator readers: why are a prevailing party’s costs so limited? “The Clerk’s authority to tax costs is limited by statute, rule, case law, and local practice,” the District of Minnesota Guide says. But that still leaves us with the question: Why?
Do you see the logic of why all of these costs should not be recoverable? For some, I do—office overhead, and secretarial services, for example. It seems likely that a lawyer or her client would incur such costs regardless of the particular lawsuit won. Other costs, such as “travel and expenses of counsel” are simply too easy to inflate (fancy hotels and high-end restaurants…) and should be borne by the client or her lawyer, not her adversary. But translation services, mediation costs, and the like?
But why the distinction between costs for “discovery depositions” (not recoverable) and depositions of witnesses who testified at trial (or whose testimony was used in a summary judgment motion, as noted here)? Our system seems to include a perverse incentive to bloat summary judgment motions and trials with evidence so litigants can make a claim for the related costs. On the flip side, our system seems to include a perverse incentive to deter meritorious parties from undertaking discovery because the costs will be deemed unrecoverable….
Here’s the court’s order on the challenge to the prevailing party’s petition for costs, largely upholding the challenge to claimed costs.
This judicial “cost-cutting” is one more example of the proverbial Minnesota hair-cut that I complain about from time to time. One gets the sense that our court system simply does not want to be all that welcoming to citizens seeking the courts’ help to vindicate their rights. Court’s will help citizens recover something but, with alarming consistency, something substantially less than the losses suffered by victims of wrong-doing.