The dollar cost of going to trial

A look at the common costs of a trial – and the very real cost of not going to trial

2021 November

“Mr. Montes de Oca.” My stomach was growling, I was exhausted and I was deep in thought as to what I needed to ask the next expert. “Mr. Montes de Oca,” the court clerk called me over and gave me an invoice. She said, “You need to pay your daily jury fees.” Since this was my first civil jury trial, I scratched my head and said, “I already paid the jury fee when I filed my complaint. This can’t be right.” She said that was a deposit and I need to pay an additional daily fee. “Oh my,” I thought, “I hope my credit card isn’t declined.”

Jury fees? I thought I paid those already…

It turns out that I had paid the deposit under California Code of Civil Procedure (CCP) section 631, subdivision (b), which states that “At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150)…”

What I should have done instead was to pay under CCP section 631(e) which states “The parties demanding a jury trial shall deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, a sum equal to that day’s fees and mileage of the jury, including the fees and mileage for the trial jury panel if the trial jury has not yet been selected and sworn.” It turns out under CCP section 631(f), “A party waives trial by jury in any of the following ways: by failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in subdivision (e).” I didn’t want that to happen, so I skipped lunch and stood in line at the clerk’s office to pay the fee. In retrospect, I recommend you prepay for the week when you begin your trial or have someone else do it so that you can continue to focus on trial and not become “hangry.”

The fees that you are paying help the State offset costs found under CCP section 215, which covers “the fee for jurors in the superior court, in civil cases, is fifteen dollars ($15) a day for each day’s attendance as a juror after the first day. And all jurors in the superior court, in civil cases, shall be reimbursed for mileage at the rate of thirty-four cents ($0.34) per mile for each mile actually traveled in attending court as a juror after the first day, in going only.”

Court reporter fees: LiveNote and dailies

Now, you might have thought that was my only surprise. But it wasn’t. Earlier that morning the court reporter had smiled at me and asked if I would like live streaming and dailies. I, of course said, sure, with a smile back. I figured if the judge had requested LiveNote, I should as well. However, when I looked at the invoice I was no longer smiling. I was being charged so much more than the per page charge I thought I was going to have to pay. Now granted, this was before Burd v. Barley Court Reporters, Inc. (2017) 17 Cal.App.5th 1037 was published. Burd held that the statutory transcription rates prescribed by Government Code (GOV) sections 69950 and 69954 apply to any court reporter producing a transcript of a civil court proceeding, regardless of whether the reporter is employed by the superior court or privately retained by a party.

Let’s look at GOV section 69950: (a) The fee for transcription for original ribbon or printed copy is eighty-five cents ($0.85) for each 100 words, and for each copy purchased at the same time by the court, party, or other person purchasing the original, fifteen cents ($0.15) for each 100 words; (b) The fee for a first copy to any court, party, or other person who does not simultaneously purchase the original shall be twenty cents ($0.20) for each 100 words, and for each additional copy, purchased at the same time, fifteen cents ($0.15) for each 100 words. GOV section 69951 states that for transcription, in civil cases, the reporter may charge an additional 50 percent for special daily copy service; this is the code section that really increased the price for me. Now there is no reason to not split the transcript fee with opposing counsel as GOV section 69953 states the cost of making any verbatim record shall be paid by the parties in equal proportion.

Remember if you are going to appeal, then you need to obtain an appellate transcript and pay the appellate court fee. A couple of other costs to be aware of and not surprised by are the following: (1) You will need to transcribe audio depositions ahead of time for trial and will be charged a transcription fee by the court reporter for this service; and (2) if you cannot agree on authentication of medical records with opposing counsel, you need to pay the custodian of records the fee to bring these records to court, which can add up quickly.

The wide range of trial costs

So that you won’t make the same rookie mistakes I made, let’s discuss the cost of going to trial. Let’s examine three civil cases that ranged in price from low to high and that were tried in front of a live jury in Los Angeles County. The three case examples below do not include prior costs like expert fees, depositions, motions, complaint, service of process, records, research, postage, and other case costs prior to trial. Obviously, if you are trying a case remotely you may be able to substantially lower your trial cost because your experts do not need to physically come to court. Since Justice Elena Kagan stated you can have a “Cadillac” lawyer or a “Ford Taurus” lawyer, I figured I would offer different trial budgets using her terms.

Ford Taurus budget

The first case, which is on the low side, was an auto v. auto accident with contested liability and contested physical injuries. The cost to try this one-week jury trial was under $10,000. We did not have a trial technician, LiveNote for the judge, or daily transcripts. The bulk of this fee was $6,000 for our retained medical expert, and the remaining costs were jury fees, custodian of record fees, and exhibits. This fee would have been greatly reduced if we had just videotaped the treating doctor’s deposition and shown his testimony at trial.  Yes, you can try a case for less than $5,000, but you are not going to have any bells or whistles to impress the jury.

Midsize sedan budget

The second case was a disputed liability and disputed damages case against the County of Los Angeles. We spent approximately $50,000 on trial costs during the two-week trial. We had a trial technician, LiveNote for the judge, computer monitors for the live transcript, rental equipment (projector, printer, Elmo), daily transcripts, video deposition clips. The bulk of these fees were from the court reporter at $20,000. Next, we spent $15,000 on retained expert witness fees for the experts to testify in person at trial. We had $14,000 in trial technician fees and presentation of exhibits. Jury fees were $1,100. We also did three self-administered focus groups for a total of $2,500. Our court-reporter fees would have been halved if we didn’t order dailies and have computer monitors with LiveNote. Our trial technician fees could have been almost eliminated if we had used TrialDirector and edited our own video deposition clips. Thus, this type of trial can range in price from $20,000 to $50,000.

Cadillac budget

The third case was an auto v. auto case with admitted liability and disputed damages regarding a traumatic brain injury (TBI). This trial, which lasted two weeks, had approximately $100,000 in trial costs. We used a trial technician, LiveNote for the judge, daily transcripts, blowups, demonstratives, graphics. We spent $40,000 on retained and non-retained expert witness fees for the experts to testify in person at trial. This was just the fee for the experts to come to trial; it did not include their prior work. We spent approximately $1,000 on jury fees, $9,000 on court reporter fees, $42,000 on blowups, demonstratives, graphics, trial technician fees and presentation of exhibits. We spent $1,200 on witness fees like the firefighter, police officer, and custodian of records. We spent $2,200 on interpreter fees. We conducted three focus groups that cost $11,000.

Trial by jury: What happened to it?

Unfortunately, many cases are not going to trial. The number of jury trials has dropped so dramatically that “the jury trial is an exceptional rather than a commonplace outcome,” (Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges, Shari Seidman Diamond Jessica M. Salerno Louisiana Law Review Volume 81 Number 1 Fall 2020 Article 9 12-11-2020). Another article highlighting this is the Death of the American Trial Lawyer, Robert Eglet, (https://www.vegaslegalmagazine.com/death-american-trial-lawyer/). His follow-up article entitled In Response to the Resurrection of the American Trial Lawyer is also worth reading (https://www.vegaslegalmagazine.com/response-resurrection-american-trial-lawyer/). Even U.S. district judge, Hon. Mark W. Bennett wrote an Obituary: The American Trial Lawyer:

The American trial lawyer (ATL), who, in innumerable ways, enhanced the lives of so many Americans and made the United States a fairer, healthier, safer, more egalitarian, and just nation, passed away recently. Although a precise age is uncertain, ATL is believed to have been at least 371 years old at the time of death. The cause of death is uncertain. A blue-ribbon panel of forensic coroners performed one of the most extensive autopsies in history. They were unable to determine the precise cause or time of death. However, they were unanimous in their conclusion that death was not sudden. In fact, ATL had been placed on the Endangered Species List a decade or so before death. The autopsy determined that ATL most likely died from a long-term, progressive illness that began more than 40 years ago…

(https://www.americanbar.org/groups/litigation/publications/litigation_journal/2012_13/spring/from-bench-obituary- american-trial-lawyer/).

These victims are being deprived of their rights under the California Constitution. This is something that can be changed by the plaintiffs’ bar. Please continue to stand for your clients, the victims, and help them achieve full justice. As consumer attorneys, we really make a difference in our clients’ lives and we should all strive to help them move forward with trial. I have included a couple of charts (see www.advocatemagazine.com for these charts) that highlight our individual county statistics for personal injury lawsuits. I urge you to look at these charts because they will blow your mind on how few trials are happening.

The real cost of not having a trial

Even though the primary purpose of this article is to give you insight into the cost of a jury trial, there is also an overwhelming message that the real cost of not having gone to trial is very problematic for our clients and something that we need to address with urgency.

I want to share some very interesting facts with you from the detailed 10-year statistical caseload and trend data from the 2021 Court Statistics Report created by Judicial Council of California (https://www.courts.ca.gov/13421.htm).

California’s court system serves a population of more than 40 million people – about 12.1 percent of the total U.S. population – and processed about 5.3 million cases in fiscal year (FY) 2019-20. The judicial branch budget for the 2019-20 fiscal year of $4.2 billion. There were approximately 2,000 judicial officers and just over 17,000 judicial branch employees statewide.

This is a gigantic court system for a large population. The alarming part is the trend to have so few jury trials. This has been the trend for the entire decade of data. This is alarming. I share this information because as fewer cases go to trial, we are missing out on what our community deems the value to be. I can assure you that our plaintiff community is valuing cases much more fairly than is the insurance company offering a settlement. The fact that there are so few civil jury trials in the last decade is mind-boggling. A jury trial is the very cornerstone of our legal system.

AlderLaw Warrior Fund

You might be thinking, “What if I can’t afford to go to trial as a new attorney?” Don’t despair. There are resources available to help for you. For example, for nearly a decade, former CAALA President Michael Alder has had the AlderLaw Warrior Fund, which was established to assist new lawyers with their cases. The Warrior Fund seeks to end situations where large insurance carriers or corporations can freeze out new lawyers. AlderLaw will act as a funding sponsor of these lawyers – for free. The firm will pay 50% of costs, up to $10,000 per case (https://alderlaw.com/community/). I encourage you to seek help if you feel you can’t afford going to trial. The cost of not going to trial is significantly higher than the cost of trial. The time to act is now. Please move forward with trial if your client is not being fully compensated.

Jury trials (uncertain or scary)

The uncertainty of jury trials is often more a reflection of our own psyche. We are uncertain about jury trials because we don’t often do them. We are afraid of jury trials because so few of us have actually done a jury trial. I bet if I asked if you were afraid to go to mediation, your answer would likely be “No!” In fact, you’d probably be eager to go. We should work to get past our fears and carry this enthusiastic attitude towards taking on a trial. I know that there can be very real financial fears as well. Don’t be afraid to ask for help. Our community is full of people who are willing and able to offer assistance in many forms. If we support each other, we can resurrect the American trial lawyer and give our clients, the victims, an opportunity at true justice. A jury comprised of diverse members of the community is the ultimate truth finder and foundation of our legal system.