The Bill of Costs
| Publication year | 1996 |
| Pages | 71 |
1996, November, Pg. 71. The Bill of Costs
CRS §§ 13-16-104 and 13-16-105, as incorporated into Colorado Rules of Civil Procedure ("C.R.C.P.") 54(d), require a trial court to award costs to a prevailing party. Section 13-16-104 concerns costs to be awarded to plaintiffs. Section 13-16-105 concerns costs to be awarded to defendants.(fn2) In making its determination on costs, the trial court is guided by CRS § 13-16-122(1).(fn3) This statute sets forth a laundry list of potential, recoverable costs that the court may award in its discretion.
Although the statute is detailed,(fn4) it is intended to be illustrative and not exclusive.(fn5) It is extremely important to note that, even when there is specific statutory authority for a particular cost, the trial judge need not award the amount requested.(fn6) This is because the judge must always make a determination as to reasonableness before any cost is awarded.(fn7) If a cost is excessive or unnecessary, it may not be awarded or may be reduced.
In addition, as with most statutes, a substantial body of law that interprets the statute has developed, and attorneys seeking costs must take care to consult the developing case law. Attorneys should understand, however, that the case law is, for the most part, very fact-specific and analyzes the cost award in terms of abuse of discretion. Thus, costs that were disapproved in one case might very well be awardable in a different situation, and vice-versa. Because the award of costs is discretionary with the trial court, attorneys seeking costs should be prepared to convince the trial judge that costs should be awarded and should not expect an automatic award.
Usually, a party claiming costs will submit the request, commonly called a bill of costs, within fifteen days after the entry of judgment.(fn8) The bill of costs is excluded from the time limits set forth in C.R.C.P. 59(j), which require the trial judge to determine post-trial motions within sixty days or have them deemed denied.(fn9) It is not uncommon for the trial court to retain jurisdiction over cost disputes and awards even after an appeal has been filed.(fn10)
The bill of costs should itemize and total the costs being claimed.(fn11) In addition, to support an award of costs, a judge must often know when, and in what context, certain costs were incurred. Even though the judge ruling on the bill of costs is usually the same judge who heard the trial, counsel must take care to provide, within the bill itself, or as exhibits thereto, the necessary foundation for the costs sought. An attorney seeking costs must provide the court with enough information and supporting documentation to allow the judge to make a reasoned decision about each cost item presented.
Perhaps in an effort to follow the outlines of CRS § 13-16-122(1), many bills of costs that are submitted are confusing, misleading, or too sketchy. This article analyzes the costs that arise in the course of a lawsuit and presents its analysis in a format that the authors suggest can be used to organize bills in a manner that should make the process a more rational one for everyone. These costs are then discussed in terms of the circumstances of their awardability pursuant to the statute and the documentation necessary.
The first cost to arise in any litigation is the docket fee. This fee is awardable pursuant to CRS § 13-16-122(1)(a). No documentation of this fee is necessary because the existence of the case is evidence that a docket fee was paid.
Service of process fees are awardable pursuant to CRS § 13-16-122(1)(i). Documentation of this fee is, or should be, evident from the court file containing returns of service.
Publication fees are awardable under CRS § 13-16-122(1)(i). Again, this requires no documentation because it is evident from the order allowing service by publication.
Pursuant to CRS § 13-16-122(1)(b), the jury fee paid at the filing of an action(fn12) is awardable. Documentation of this fee is
At least one case has held that investigative and paralegal expenses are not recoverable because they are not articulated in CRS § 13-16-122(1).(fn13) The Colorado Supreme Court recently held, however, that the costs statute is illustrative and not exclusive.(fn14) Thus, the merit of this type of reasoning is now suspect. Notwithstanding the foregoing, it is probably fair to say that investigative and paralegal expenses are ordinarily regarded as overhead and, therefore, are not recoverable. A request for investigative or paralegal time may be merited, however, in an unusual case. To substantiate such a request, counsel should submit billing statements detailing the nature of the work and the amount of time spent by the investigator or paralegal.
Subpoenas: The cost for service of subpoenas is awardable under CRS § 13-16-122(1)(i). Documentation of these fees should be set forth by name of witness and payment to each, and should not be presented as a lump sum.
Travel of Witness: Witness fees, including subsistence payments and mileage, are awardable under CRS § 13-16-122(1)(e). Documentation of these fees, like costs of subpoenas, should be set forth by name of witness and payment to each, and should not be presented as a lump sum. To recover for travel expenses, an attorney should set forth whether: the witness was subpoenaed; the witness was critical; the witness was at trial; and the witness's deposition testimony made some significant impact in the case.(fn15)
Travel of Attorneys to Depositions: The court, in its discretion, may allow travel and attorney expenses for the taking of depositions pursuant to C.R.C.P. 30(b).(fn16) However, there must be a showing of unnecessary inconvenience, expense, or hardship.(fn17)
Transcripts of Depositions Taken for Perpetuation of Testimony: The costs associated with taking depositions for the perpetuation of testimony are allowable, but the...
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