What are "Costs," Anyways?

By Brion Doherty

Stotis & Baird Chartered

bdoherty@stotis-baird.com

The Illinois Code of Civil Procedure provides that a prevailing plaintiff in a civil action may recover costs against the defendant.¹ Similarly, defendants or the party that is awarded judgment on a motion may recover costs.² It is not always clear, however, exactly what the term "costs" encompasses. The term is not clearly defined and the authority to award costs can be found in several statutes. This article explores what costs Illinois courts have deemed recoverable from an opponent in a civil case.

What are costs and what authorizes a court to award them?

"Costs are allowances in the nature of incidental damages awarded by law to reimburse the prevailing party, to some extent at least, for the expenses necessarily incurred in the assertion of his rights in court."³ "At common law, a losing litigant was not responsible for paying the costs and expenses of his prevailing adversary."⁴ Since 1854, however, Illinois law has authorized courts to award costs to the prevailing party by statute.⁵

In tort actions, costs such as filing fees, subpoena fees and statutory witness fees can generally be sought under 735 ILCS 5/5-108 (or 5-109 for the prevailing defendant or 5-110 for a party receiving judgment via a motion). The term "costs" is not defined in the statute. Costs are also taxable under Supreme Court Rule 208, which provides that a court may tax as costs "the reasonable and necessary charges of the recorder or stenographer, charges for transcription and filing, and the statutory fees of the officer taking and certifying the deposition."⁶

There are other statutory bases for awarding costs, such as Supreme Court Rule 219, which deals with sanctions for a failure to comply with discovery orders. The recent case of Jones v. Chicago Cycle Center, 2009 WL 1272094 (1st. Dist. 2009), highlights that substantially all costs incurred during the defense or prosecution of a case may be awarded if the other side engages in discovery misconduct. This article, however, does not cover the costs that can be awarded under Supreme Court Rule 219.

What kinds of costs are awardable to the prevailing party?

Some of the costs associated with litigation do not cause disputes, such as filing fees and service fees. Other costs, however, have caused disputes, and are discussed below.

Pleadings. The costs associated with obtaining a 2-622 affidavit required to be attached to complaints in medical malpractice cases are not taxable as a cost against the defendant.⁷ While the cost is a necessary expense, it does not fall within the commonly understood meaning of "court costs," and is not taxable against the losing party.⁸

Depositions. There are several costs associated with depositions. There are court reporter fees. There may be videographer fees. If the deposition involves an expert witness, there are likely to be professional fees. There may be a translator. And so on. The different costs associated with depositions have caused controversy, and there are splits in the appellate courts about what costs are taxable.

The basic framework for determining whether costs of a deposition can be taxed are found in Supreme Court Rule 208, which provides that a court may tax as costs "the reasonable and necessary charges of the recorder or stenographer, charges for transcription and filing, and the statutory fees of the officer taking and certifying the deposition."⁹

These costs, however, are only taxable if they are "necessarily used at trial."¹⁰ A deposition is necessarily used at trial when the testimony is necessary for the plaintiff to prove his case.¹¹ The deposition must be "relevant and material" and the deponent must not be available at trial "as, for example, if the deponent has died, has disappeared before trial, or is otherwise unavailable to testify."¹² This "necessarily used at trial" framework applies to situations where a plaintiff takes a voluntary dismissal as well.

Perhaps one of the more expensive aspects of civil litigation are the professional fees incurred for expert witnesses. Although some courts have held that such costs were taxable, in 2003 the Supreme Court, in Vincencio v. Lincoln Way Builders, held that these expenses are not.¹³ While some members of the Court realized such costs were necessary and that doctors may not be available for trial, the Court found no statutory basis for awarding such fees absent any misconduct by the parties. Similarly, the Third District, considering the same case prior to the Supreme Court hearing it, found no statutory basis for awarding costs associated with interpreter’s fees and subpoena fees for a person that failed to appear at trial.¹⁴

Stenographer fees associated with the evidence deposition of an out-of-state treating physician witness are taxable to the other party. Such depositions are taken for trial and needed for trial, and are thus properly taxable.¹⁵ Such witnesses are beyond the subpoena power of Illinois courts, making them "unavailable to testify" at trial.¹⁶

The Third District holds that videotaping costs are not taxable.¹⁷ It reasons that videotaping a deposition is a matter of "trial strategy," and thus is not something taxable to an opponent.¹⁸ The Second District disagrees with the Third District’s position. It holds that such costs are taxable, and points to the Supreme Court’s decision in Vincencio v. Lincoln Way Builders to support its position. ¹⁹ The relevant portion of the Vincencio decision states ". . .defendant also asserts that the trial court erred in taxing as costs the fees of the videographer . . . such fees are mentioned in Rule 208(a) and, as such, [it is] among the [costs] that the trial court has the discretion to tax . . ." ²⁰ Both courts issued their decisions after the Vincencio decision, and it would appear that the Second District has considerable support for its position, but the courts currently remain split.

Trials. The appellate courts also disagree on whether court reporter fees incurred during a trial are taxable. The Second District, reviewing a case in which the trial judge assessed half the court reporter costs to the losing party, found such costs were taxable. ²¹ They were taxable because the transcripts were necessary for the trial, provided a record of the trial, and benefited both sides.²² The First District, however, holds that such costs are not recoverable and declines to follow Burmac.²³ It reasons that such costs do not fit under the traditional notion of costs, and that because the statute allowing costs is in derogation of common law, it must be construed narrowly.²⁴

Summary

In summary, the following costs are allowable under current law:

• Filing fees;
• Subpoena fees;
• Statutory witness fees;
• Stenographer fees for an evidence deposition of an out-of-state witness.

Courts disagree on whether the following costs are taxable:

• Videotaping fees (not available in Third District);
• Trial court reporter costs (available in Second District, not in First District).

The following fees are not taxable:

• Interpreter’s fees;
• Subpoena fees for a witness that does not appear at trial;
• Expert witnesses’ professional fees;
• Fees incurred in procuring a 2-622 affidavit.