|Jeffrey N. Catalano is an associate at Todd & Weld LLP in Boston. His practice includes a focus on medical issues.
It is well known that the party who prevails at trial in Massachusetts is entitled to pursue certain costs. Massachusetts General Laws chapter 261, section 1 provides that "In civil actions the prevailing party shall recover his costs, except as otherwise provided." Similarly, under Mass. R. Civ. P. 54(d), "[e]xcept when express provision therefor is made either in a statute of the Commonwealth or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs." This article provides a history and overview of the law allowing costs to the successful litigant and offers a concise summary of what, when and how to pursue these costs. It also explores the complexities that sometimes arise in pursuing costs.1
A brief history
Present authority allowing the successful litigant to recover costs is but a mere ghost of an ancient ancestor, whose interesting history warrants a brief review. Unfortunately, however, this history begins with the discomforting knowledge that attorneys were held in disrepute and suspicion as far back as colonial America. Legislation in colonial America regarding attorney fees reflected a desire to control the amount an attorney could charge a client, rather than a desire to award the prevailing party attorney fees.2 Several 17th century colonial statutes totally denied attorneys fees for services, denied paid attorneys access to courts or, as in Massachusetts, restricted fees to the amount of costs recovered.3 The antagonism toward attorneys evidently stemmed from suspicion and jealousy by the ruling class, which in New England was the clergy. Also, colonial population believed that the law encompassed fairly simple rules that could be understood easily by most intelligent people without attorneys, who were considered "unnecessary luxuries."4 Naturally, attorneys sought to circumvent these fee restrictions and freely market their services.
To resolve this conflict, by the beginning of our country many states adopted the general principle of the English Rule or the "loser pays" rule.5 (This rule had been in formal existence in England since as early as 1607.)6 In 1784, Massachusetts enacted the presently existing legislation allowing the prevailing party to recover costs.7 That original statute also required the plaintiff's attorney to pay the costs if the plaintiff was unable. However, rebellious young America thereafter underwent a fundamental shift in philosophy and accepted a system more forgiving of the losing litigant.
In 1796, the U.S. Supreme Court in Arcambel v. Wiseman acknowledged this changing ideology and adopted, somewhat tepidly, the rule of law now called the "American Rule."8 In Arcambel, the Supreme Court, in denying an award of counsel fees to the prevailing party, stated:
The general practice in the United States is in opposition to [awarding counsel fees]; and even if that practice were not strictly correct by principal, it is entitled to the respect of the court, till it is changed or modified by statute.9
Legal scholars suggest that American deviation from the English Rule may have resulted from several factors. One is early America's strong belief in rugged individualism and that litigation was simply a "fair fight" where the loser should not be penalized.10 The American Rule may also have resulted from the vague feeling that it favors the poor man and, therefore, was more democratic than the English Rule, which favors the wealthy litigant.11
Although essentially buried, the English Rule has reached up from its grave on occasion. In 1925, the Massachusetts Judicial Council favored a return to the English Rule as a solution to clogged courts, which were a problem even then.12 In its report, the council stated:
The possibility of having to pay the lawyer's bills of both parties to the action makes a plaintiff think twice before he sues out a writ and a defendant think twice before he defends an action which ought not to be defended, and that is a direct deterrent on the number of cases put or kept in suit.13
More recently, this has been discussed as a draconian means of tort reform.14 In any event, and fortunately for many of us, only skeletal remains exist of that early corpus of law that made the loser pay. In Massachusetts, these are the present day cost-shifting statutes, which allow successful litigants to recover only nominal costs of litigation.15
What to pursue
Although the amount of costs that an attorney can recover is considered "wholly inadequate," a client is best served by an attorney who understands all costs that are recoverable, which can amount to thousands of dollars.16 Unless otherwise provided by statute, the amount of the costs is within the sound discretion of the court.17
Under Mass. R. Civ. P. 54(e), the taxation of costs in the taking of depositions should be allowed where the court "finds that the taking of the deposition was reasonably necessary."18
Opposing counsel will most often challenge these costs because (i) they are the most substantial of costs sought and (ii) a party must demonstrate how each deposition was "reasonably necessary." Moreover, opposing counsel is entitled to a hearing before the court awards deposition costs and the court must make an express finding of reasonable necessity.19 Therefore, this category of costs warrants the most attention and support in the motion.
Reasonably necessary depositions include those of witnesses called at trial, particularly where the depositions were used for cross-examination at trial. Naturally, depositions of parties qualify as reasonably necessary. Any unavailable witnesses whose depositions were read at trial also typically qualify. As to witnesses not actually called at trial, one can often argue that their deposition transcripts were necessary as these witnesses had significant knowledge pertaining to the case, the allegations or defenses and/or his damages, which had to be explored in preparing for trial. It is useful to the court to include a description of each individual's relationship to the case and the parties. One can recover these costs even if the prevailing party herself did not notice the depositions.20 In addition, a party may recover stenographer costs even when a witness failed to appear for the deposition.21
As to trial transcripts, however, the Supreme Judicial Court has held that such costs are not recoverable because, unlike deposition transcripts, they do not constitute or procure evidence.22
The amount of taxable witness fees is governed by Massachusetts General Laws chapter 262, section 29. Witnesses are permitted "six dollars a day and ten cents a mile for travel out and home," which applies to all witnesses. In addition, each witness must certify in writing the amount of his travel and attendance. The travel of a witness coming from another state is recoverable only from the state line to the place of trial and return.23
Unless it is a chapter 93A case, a party cannot recover expert witness fees in excess of the $6 a day and 10 cents a mile allowed under Chapter 262, Section 29.24
Chapter 93A attorney fees and costs
Massachusetts General Laws chapter 93A, section 9(4) and section 11(paragraph 6) provide an award for attorney fees to the prevailing party along with an award of costs. In contingency fee cases, however, the court will not award an amount equal to the contingency percentage in the fee agreement.25 Rather, attorney fees in chapter 93A cases are determined "on what the services were objectively worth."26 The Supreme Judicial Court in Linthicum v. Archambault,27 set forth a multi-part test to determine the objective worth of the attorney's services, which is as follows:
The judge . . . should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.
The court may consider the hours reasonably spent by counsel and their paralegal and customary hourly rates for skilled trial counsel in that area.28 Therefore, it is wise for plaintiff's counsel to keep track of hours spent on chapter 93A cases.
Outside of chapter 93A civil tort actions, attorney fees are not included as costs.29 Moreover, the Massachusetts Superior Court recently concluded that legal research fees and private investigator fees are deemed to be within the purview of counsel fees and not recoverable.30
The Supreme Judicial Court has held that expert witness fees normally should be allowed in chapter 93A cases.31 However, such fees are discretionary, and can be reduced where there are multiple claims in addition to the 93A claim, the expert witness' testimony was significant with respect to the non-93A claims and where the fee, or some part of it, was not reasonably and necessarily incurred.32
Routine costs such as photocopies, filing fees, service and subpoena fees, trial subpoena fees and trial charts usually are recoverable.33 However, pursuant to General Laws chapter 261, section 25A, the prevailing party is entitled only to the cost of photocopies, plans and drawings "actually used at trial" and the total cost shall not exceed $500.
Costs against the commonwealth
Pursuant to Mass. R. Civ. P. 54(d), "costs against the Commonwealth, its officers, and agencies shall be imposed only to the extent permitted by law."34 In addition, the Supreme Judicial Court has held that Mass. R. Civ. P. 54(d) "requires that an award of costs against the Commonwealth be based on specific affirmative authority." This requirement arises out of the general rule of law that the commonwealth "cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed . . . [by] statute."35
Specific authority to impose costs against the commonwealth is found in General Laws chapter 261, section 14, which provides: "In civil actions and in proceedings which are instituted by, or in the name of, the commonwealth, and not at the relation, in behalf, or for the use, of a private person, the commonwealth shall be liable for costs as is an individual." Importantly, however, this statute does not extend liability for costs where the commonwealth is a defendant.36
Other important considerations
Costs of bonding and dissolving attachments are permitted.37 Costs associated with an appeal also may be allowed.38 Double costs may be allowed in connection with frivolous appeals.39 Under General Laws chapter 231, section 6F, costs may be taxed against litigants who advance arguments that are "wholly insubstantial, frivolous and not advanced in good faith." (Note that this includes defenses as well as claims.) In addition, courts may award costs under Mass. R. Civ. P. 68 when a defending party has made a written offer of judgment and the opposing party does not obtain a judgment in an amount (without interest) more favorable than the offer. Only costs incurred after the offer are awarded under Rule 68.40 Importantly, the Supreme Judicial Court has determined that an award of costs is a "judgment for the payment of money" under General Laws chapter 235, section 8 and, as such, bears interest from the day of entry.41
An interesting twist - winning some claims but not others
A more complicated situation arises when a party obtains a verdict against one adversary, but not the others; or prevails on one count, but not the rest. Can the prevailing party seek all of its costs? The answer is, it depends. Pursuant to General Laws chapter 261, section 9, a party cannot obtain reimbursement for costs associated with claims or counts that it lost, unless those costs also related to the claims or counts on which it prevailed.42
One common example is where a plaintiff prevails against one defendant, but not the others. So long as the costs of pursuing evidence against the non-liable defendant also related to the liable defendant, they can be recovered. (Naturally, the non-liable defendant can recover her costs against the plaintiff.) The liable defendant, however, will contend that he should not pay for deposition costs of witnesses where those depositions were noticed by the non-liable defendant. Although there is no case law addressing this particular situation, the argument is one based on common sense. Often, the liable defendant is inherently intertwined with the non-liable defendant. It is commonly understood that defendants confer on strategy throughout a case, including which witnesses to depose. Who actually notices the depositions typically is perfunctory, and the liable defendant usually examines these witnesses. The argument for obtaining all costs is even stronger where the same insurance company represents all defendants, or where the defendants are partners or agents of one another.
The question is more complex when the jury returns a verdict in a plaintiff's favor on one count against a defendant, but not on other counts. This solution to this problem is found in reviewing pre-Civil War cases (when disputes simply involved horses and hay). The Massachusetts courts historically recognize that, although there may be separate counts through which a party seeks compensation, this does not necessarily mean that there are "several and distinct" claims or causes of action.43 Instead, the courts take a much more liberal approach. The courts first examine the evidence offered in support of the various counts to determine if the counts were designed to embrace different causes of action. The courts recognize that much evidence is applicable to all distinct causes of action. A party may not recover for costs "specifically applicable" to counts on which she did not prevail.44 However, if evidence offered in support of all counts (including those upon which the party did not prevail), "would have been properly admissible" under the count on which the party did prevail, then the plaintiff may recover the costs of evidence on all counts.45 In other words, if the evidence "might have been the same" had there been only the prevailing count and not the additional unsuccessful counts, then the party can argue for costs of evidence on all counts.46 This result effectively trumps the defendant and precludes her from recovering costs on counts on which she prevailed.47
The mechanics of pursing costs
Affidavit and supporting documentation
Rule 54(d) requires an affidavit pertaining to items of costs the party desires to have considered. It is important to include an itemized breakdown of all such costs you seek to recover.48 Such items are given "careful scrutiny" by the court.49 Therefore, it is also important to attach as much supporting documentation of expenses as possible. Include invoices for depositions, copy charges and bills for service of process and subpoenas along with a printout of all such expenses. As for court fees, copies of letters to the court confirming filing fees usually suffice. One practice tip is to create a separate folder for all such invoices at the inception of the case to avoid spending hours searching through the file post trial.
How and when to serve a motion for costs
There is no specific Massachusetts procedural rule regarding the time or manner of filing a motion for costs. However, it is important to file a motion for costs as soon as possible after the verdict and before judgment is entered. Arguably, pursuant to General Laws chapter 261, section 19, the prevailing party need only provide "notice" to an adverse party of the intent to pursue costs and need not serve it pursuant to Superior Court Rule 9A. However, in doing an end-run around Rule 9A, one invites an opposition on the basis that it was not properly served, which may require serving the motion again, resulting in further delay.
However, if the motion is served pursuant to Rule 9A, then judgment may enter before the motion and the opposition are filed with the court. If that occurs, then the motion for costs must be fashioned as a motion to amend the judgment and served no later than 10 days after entry of judgment under Mass. R. Civ. P. 59(e). And, once judgment has entered, moving to amend the judgment to include costs theoretically is more difficult for the prevailing attorney.50
Therefore, one practical approach is to serve the motion pursuant to Rule 9A and simultaneously file a "notice of service of motion for costs" directly with the clerk. Attach the motion for costs to the notice and request that the court not rule on it until the entire Rule 9A package has been submitted. This timely alerts the court to the motion for costs and avoids an improper service problem.
Often the effort in drafting a motion for costs, which includes writing a detailed affidavit, rummaging through the file to compile supporting invoices and attending a hearing makes this a tedious and time-consuming endeavor. Indeed, the hours spent may outweigh the amount of anticipated recovery. Nevertheless, if an attorney intends to charge the client for these expenses, there is an ethical duty to seek compensation first from the opposing party.
Furthermore, one should keep firmly in mind our legal ancestors' impetus behind the law - a party should get back some costs he was forced to spend to achieve a result he deserved and should have received without prolonged litigation and trial. In other words, as a modern day trial attorney might pithily proclaim - justice delayed is justice overpaid.
1. This article does not address the recovery of costs under federal law. Also, please refer to General Laws chapter 261, section 26 for a comprehensive list of items of costs allowed in state district court actions.[back]
2. John F. Vargo, The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice, 42 Am. U.L. Rev. 1567, 1571 (1993).[back]
4. Id. at 1572.[back]
5. Id. at 1574.[back]
6. Id. at 1569.[back]
7. Mass. Gen. Laws ch. 261, ß 1.[back]
8. 3 U.S. 306 (1796).[back]
10. Vargo, supra note 2, at 1635.[back]
11. Arthur L. Goodhart, Costs, 38 Yale L.J. 849, 874 (1929).[back]
12. Id. at 876.[back]
13. First Report of the Judicial Council of Massachusetts (1925) 63-64.[back]
14. Note, 'Common Sense' Legislation: The Birth of Neoclassical Tort Reform, 109 Harv. L. Rev. 1765 (1996); Frances H. Miller, Medical Malpractice Litigation: Do the British Have a Better Remedy? 11 Am. J. L. & Med. 433 (1986).[back]
15. Waldman v. Am. Honda Motor Co., Inc., 413 Mass. 320, 322 (1992) citing MacNeil Bros. v. Cambridge Sav. Bank, 334 Mass. 360, 363 (1956).[back]
16. Waldman, 413 Mass. at 322.[back]
17. See Mass. Gen. Laws ch. 261, ß 13 (1992); Creed v. Apog, 377 Mass. 522, 525 (1979).[back]
18. See Waldman, 413 Mass. at 326-28 (approving award of actual cost of depositions on finding of reasonable necessity).[back]
19. Id. at 327-28.[back]
20. See C.W. Keller & Assoc. v. Cullen, 11 Mass. L. Rep. 508 (2000 J. Haggerty).[back]
21. See id.[back]
22. Demoulas v. Demoulas, 432 Mass. 43, 64 (2000).[back]
23. Melvin v. Whiting, 30 Mass. 184 (1832).[back]
24. Waldman, 413 Mass. at 322 (concluding that limitation of witness fees applies to experts).[back]
25. Computer Sys. Eng'g, Inc. v. Qantel Corp., 571 F. Supp. 1379, 1381 (D. Mass. 1983); see also Miller v. Risk Management Found., 36 Mass. App. Ct. 411, 421 n. 16 (1994).[back]
26. Heller v. Silverbranch Constr. Co., 376 Mass. 621, 629 (1978).[back]
27. 379 Mass. 381, 388-89 (1979).[back]
28. Computer Systems, 571 F. Supp. at 1381.[back]
29. But see Manchester v. Dep't of Envtl. Quality Eng'g, 382 Mass. 208, 215-16 (1980) (attorney fees may be awarded as an element of the cost of enforcing the order of the court); Bournewood Hospital, Inc. v. MCAD, 371 Mass. 303, 308 (1976)(discusses attorney fees and limited exceptions). Attorney fees are recoverable in District Court under General Laws chapter 261, section 26, however, the amount recoverable (up to $2.50) is negligible. [back]
30. Paquin v. MRW, 15 Mass. L. Rep., 507 (J. Fecteau, 2002).[back]
31. Linthicum, 379 Mass. at 389. [back]
32. George v. Coolidge Bank & Trust Co., 360 Mass. 635, 640 (1971); Waldman, 413 Mass. at 457; Charles River Constr. v. Kirksey, 20 Mass. App. Ct. 333, 344-45 (1985).[back]
33. See e.g. Reliance Nat'l Ins. Co. v. Sears, Roebuck & Co., Inc., 58 Mass. App. Ct. 645, 649 (2003); C.W. Keller & Assoc., Inc., 11 Mass. L. Rep. 508 (2000).[back]
34. Ware v. Commonwealth, 409 Mass. 89, 90 (1991); M.C. v. Comm'r of Correction, 399 Mass. 909, 912 (1987); Broadhurst v. Dir. of the Div. of Employment Sec., 373 Mass. 720, 722 (1977). [back]
35. General Elec. Co. v. Commonwealth, 329 Mass. 661, 664 (1953). [back]
36. Broadhurst, 373 Mass. at 722.[back]
37. Creed, 377 Mass. at 524; Mass. Gen. Laws ch. 223, ß 122.[back]
38. Mass. R. App. P. 26(a); Mass. Gen. Laws ch. 261, ß 22.[back]
39. Mass. R. App. P. 25.[back]
40. Michael B. Bogdanow, Massachusetts Tort Damages, Costs, Interest and Attorneys' Fees, Massachusetts Tort Damages 2d ß 15-1[back]
41. Osborne v. Biotti, 404 Mass. 112, 115 (1989).[back]
42. Massachusetts General Laws chapter 261, section 9 reads as follows:
If a verdict is rendered for the plaintiff upon one or more counts upon several and distinct claims, and for the defendant upon any others, each party shall recover costs for the travel and attendance of witnesses, for depositions and for other evidence produced, examined or used on the trial of the counts upon which the verdict is in his favor, but shall not recover for the like charged incurred on the trial of the other counts.[back]
43. Totman v. Carpenter, 58 Mass. 148, 149 (1849); Tatem v. Adams, 56 Mass. 180, 182 (1848) (determining that eight counts actually constituted two causes of action.); Sayles v. Briggs, 42 Mass. 292, 292 (1840).[back]
44. Elder v. Bremis, 43 Mass. 599, 607 (1841); Sayles, 42 Mass. at 292.[back]
45. Elder, 43 Mass. at 607.[back]
46. Sayles, 42 Mass. at 292.[back]
47. Elder, 43 Mass. at 607; Tatem, 56 Mass. at 183.[back]
48. Maillet v. ATF-Davidson Co., 407 Mass. 185, 195, n.15 (1990).[back]
49. Waldman, 413 Mass. at 328; citing Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964).[back]
50. Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Comm'n, 394 Mass. 233, 235 (1985); Page v. New England Tel. & Tel. Co., 383 Mass. 250, 252 (1981); see also Gagnon v. Fontaine, 36 Mass. App. Ct. 393, 401 (1994) (noting that a Rule 59(e) motion seeks substantive alterations in the judgment).[back]