What costs cannot be recovered in a personal injury lawsuit?
When a person files a civil law suit for personal injuries, the damages that they are allowed to ask the jury to award are defined by both the statutory and case law. Most personal injury publications and websites discuss the damages you can recover in a personal injury case, but many do not tell people what costs cannot be recovered in a personal injury lawsuit. Since all non-recoverable expenses ultimately must be paid for out of any settlement or judgment, this recovery cost is something a lawyer and client must consider in deciding whether on not the risk of litigating a case is justified by the anticipated net recovery.
Successful Party to Recover “Costs”
Pursuant to Texas Rules of Civil Procedure 131, “the successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Whiles this Rule seems simple enough, the vague “except where otherwise provided” clause mucks things up for litigants. Texas Civil Practice & Remedies Code Ann. §31.007(b) further spells out with a little more clarity what some of the costs are as follows:
A judge of any court may include in any order or judgment all costs, including the following:
- fees of the clerk and service fees due the county;
- fees of the court reporter for the original of stenographic transcripts necessarily obtained for use in the suit;
- masters, interpreters, and guardians ad litem appointed pursuant to these rules and state statutes; and
- such other costs and fees as may be permitted by these rules and state statutes.
This rule has been interpreted by the courts to allow recovery for “deposition costs and filing, court reporter, transcript and subpoena/citation fees” Shenandoah Associates v. J & K Properties, 741 S.W.2d 470, 487 (Tex.App.—Dallas 1987, writ den’d); Allen v. Crabtree, 936 S.W.2d 6 (Tex.App.—Texarkana 1996). Costs “for rental of a television and video recorder” and “copies of videotapes, photographs and service of citation.” Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc., 937 S.W.2d 60 (Tex.App.—Houston [14th Dist.] 1997). While this seems to encompass many costs, some of those left out are the largest.
Attorneys’ Fees Are Not Recoverable as Costs of Court
Attorney’s fees are only recoverable in cases where there is a specific statute authorizing them. Gulf States Utilities Co v. Low, 79 S.W. 3d 561, 567 (Tex. 2002). There is a statute authorizing an award of attorney fees for certain contract claims and DTPA claims. However, attorney’s fees are not recoverable in a personal injury lawsuit from the other side.
This creates an intellectual conundrum when you consider the theory behind personal injury law. The whole point of personal injury damages is to compensate the victim for the harms done in an amount that represents the fair value of the damages suffered. The purpose here is to make the victim whole. However, if the attorneys fee of 40% is then taken out of that amount, a personal injury victim can never be made more than 60% whole by going to trial and winning a personal injury lawsuit.
Expert Witness Fees Are Not Recoverable
One of the larges true expenses a lawyer must incur in many cases is the cost of expert witness fees. The defense can force a plaintiff to bring testimony of a doctor to testify as a medical expert by filing a simple counter-affidavit challenging your medical bills. Once the counter-affidavit is filed, failure to bring expert testimony will result in your bills being excluded from evidence. If a doctor’s testimony is required, his fees for testifying can run thousands of dollars per hour. You cannot force the other side to pay those costs even when you win.
There are many other experts whose testimony may be required in a personal injury case. These experts include:
- Accident Reconstructionists to prove disputed liability claims
- Psychiatrists/Psychologists for mental injuries
- Economists for lost earning capacity
- Vocational Rehabilitation Specialists
- Safety Engineers
- Industry Experts
In some cases, expert witness fees can run into the hundreds of thousands of dollars when testing is required. This also comes out of the client’s compensation further reducing their percentage of being made whole.
Video Editing Not Recoverable
Another substantial expense can be the cost of editing videos of witnesses that are to be played for the jury. It is generally cheaper to take a video deposition of experts than pay them to come live. There are also often times when a witness cannot be relied upon to show for court so you videotape their deposition in advance. But anytime a witness gives a video deposition, there will be hearings on what is admissible and what is not before it is ever shown to a jury. The court will order parts to be edited out. Other parts may be cut to shorten the testimony to keep the jury’s attention. Paying someone to sit there and go line-by-line editing a video, usually on short notice since the Court often rules on this the day before it is played for the jury, can be costly.
General Case Expenses Not Recoverable
In addition to the above, there are many general case expenses that are not recoverable. Copying costs, office supplies and mailing expenses are not recoverable. This may not seem like much, but it can add up to thousands of dollars when you realize that every document a lawyer files with the Court must be copied and mailed by certified mail to all other lawyers involved.
Travel Expenses Are Not Recoverable
If your lawyer must travel to other cities, offices or places for hearings, depositions and witness meetings, the airfare, mileage, and parking expenses are expenses the client must reimburse to the lawyer in addition to his fees. However, the law does not authorize an award of these from the other side.
Demonstrative Exhibit Costs Not Recoverable
Many times demonstrative aids such as charts, diagrams, blowups of xrays or photos are required at trial for the best presentation of a case. Those costs are not recoverable from the other side.
The Effect of Costs on a Case
Some of the most expensive costs of a case come out of the client’s compensation and cannot be recovered from the other side. The effect of this is that a client can never receive full compensation by taking a case to trial. The client will have to pay the attorney fees, expert witness fees and other unrecoverable expenses out of the money awarded as compensation. When you consider that the client must also pay off medical expenses and liens out of their compensation, you can see how a client can go all the way to trial, win the case, and still wind up with very little in his or her pocket after all is said and done. This is a flaw in the design of our legal system that often cannot be avoided.
There are many expenses involved in taking a case to trial. While a small amount of these are recoverable as taxable costs of court, many of them are not. Because these expenses must come out of the ultimate recovery for the client, they should be taken into account when evaluating a settlement offer or whether to even pursue a case.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.