Award for Cost Denied After Counsel Fails to Properly Introduce Costs into Evidence

close-up-court-courthouse-534204-1024x569When a lawsuit fails, there are certain situations where the party who brought the failed lawsuit is responsible for the costs to the other party. Where that line is drawn is generally based on a judge’s discretion and views on the reasonability of those costs. Without excellent attorney work, procedural and legal roadblocks may make it impossible for a court to award the fees that a party should be entitled to. That was the case for three dentists after winning a lawsuit against a Baton Rouge plaintiff.

Tara Lorraine lost a lawsuit against three dentists she accused of malpractice. The jury found that she did not prove that her treatment breached dental treatment standards and her claim was dismissed with prejudice. When a claim is dismissed with prejudice, the dismissal was based on the merits and the facts of the case and it cannot be brought again by that plaintiff.

In response to their favorable verdict, the three dentists then asked the court to award them with the costs of the defense, totaling $9,555.14. This was asked to cover the costs of various things to prepare for trial, such as jury panels and expert witnesses. The Trial Court held a hearing and determined that Ms. Lorraine was liable to the dentists for the full amount requested. Ms. Lorraine then appealed.

Louisiana law allows a party to recover costs incurred during a lawsuit and the court is given discretion to award this based on if it feels it is equitable. La. C.C.P. art. 1920. The costs that can be recovered include basically anything a party incurred in preparation for trial. La. R.S. 13:4533. Specifically related to Ms. Lorraine, Louisiana law allow a party to recover costs for expert witnesses. La. R.S. 13:3666. For a party to recover the costs of a lawsuit, the documentation of those costs must be properly admitted into evidence at trial. Denoux v. Vessel Management Services, Inc., 983 So. 2d 84, 88 (La. 2008).

Ms. Lorraine’s argument on appeal was that because these costs were never admitted as evidence, the Trial Court incorrectly applied the law with the award. These were charges that were not certified, were not authenticated, and were not available to be cross-examined. She further argued that even during the motion to award trial costs the counsel for the dentists did not present any witnesses to explain that these costs were reasonable or even to establish the true cost. The defendant dentists countered that a court can award these costs as long as they are reasonable, even if they were never properly admitted into evidence.

The Appellate Court agreed with Ms. Lorraine’s argument. It noted that while the defense counsel placed these documents physically into the record, it did not matter. In Louisiana, any evidence that is not officially introduced into evidence cannot be considered. This meant that as a matter of law, the Trial Court committed an error by awarding the defendant dentists the costs to prepare for trial. This was an abuse of the Trial Court’s discretion. In a twist in the lawsuit, Ms. Lorraine was actually awarded costs for the appeal.

The Appellate Court noted that some costs may be awarded despite never being introduced into evidence, that situation did not apply here. Those situations include when a trial court can rely on its own observations and experiences in court during the trial and is allowed because the judge is in a position to judge the reasonability of the costs. However, that situation certainly did not apply to this case because a different judge presided over each of the stages of the case at trial. Specifically, the judge that presided over the trial on the merits did not preside over cost assessing portion.

Awarding costs to the victorious party in a lawsuit is a legitimate practice and can have great benefits for a less wealthy party. It is always important to know the relevant law and case law to ensure that these costs are asked for properly. When it is not done properly the party that initially won the lawsuit on the merits may end up paying some of the court costs for the other side.


Written by Berniard Law Firm Blog Writer: John Trepel

Additional Berniard Law Firm Articles on Awarding Attorney Fees: Louisiana Court of Appeal Upholds High Legal Fee Awarded to Attorney in Class Action


Contact Information