Costs are the fees incurred for the use of a court and are seen in civil and criminal courts of all levels. Court costs usually include the initial filing fee, fees for serving the summons, complaint, and subpoenas, and fees to pay for the transcription by a court reporter of depositions or in-court testimony. Additionally, the cost of photocopying court papers and exhibits, providing daily small stipends to jurors, and paying the court clerk and the court marshal are often also included as applicable to the case.
Jurisdictions differ on which specific costs are considered “court costs”. Most court costs are defined by federal or state statute, although clarification of the standard may be offered by courts when the statutory rule is ambiguous, confusing, or controversial. For example, Article 102.020 of the Texas Code of Criminal Procedure states that criminals convicted of certain crimes must pay a court cost of $250 to cover the cost of DNA recording. Discussing this article, the Court of Criminal Appeals of Texas clarified in Peraza v. State that a statutorily-prescribed court cost in Texas need not be “necessary” or “incidental” to the criminal trial, but rather only allocated for a “legitimate purpose” related to the administration of the Texas criminal justice system. Judges, not juries, make the ultimate decision when disputes over court costs arise.
In the civil context, court costs are normally awarded to the prevailing party, meaning that the ‘losing’ party must cover them. Rule 54(d)(1) of the Federal Rules of Civil Procedure allows exceptions to this general rule via statute or court order. While ultimately at the determination of the judge, judges will typically defer to any court cost provisions in a contract between the parties.
The prevailing party usually must create, substantiate, and present an itemized list of their court costs that are recoverable in the jurisdiction. Court costs can be significant, and plaintiff counsel and defense counsel may therefore spend much time disputing which costs should be included. Juries are generally instructed to not take court costs into consideration when deciding damages for a plaintiff, so unrecoverable costs can significantly reduce the plaintiff’s award. Notably, the United States differs from many other countries in its treatment of attorneys’ fees. As per “the American rule”, attorneys’ fees are not considered court costs and each party pays their own attorneys’ fees. Attorney’s fees are often the most expensive component of litigation, but the prevailing party is generally not able to recoup its attorneys’ fees unless recovery is authorized by a specific statute or the parties’ contract.
In the criminal law context, court costs are not meant to be punitive in nature, but rather to facilitate the government’s partial recovery of its expenditures in carrying out a criminal case. The convicted criminal pays the court costs because the governmental expenditure only exists because of their illegal activity. In many jurisdictions, community programs such as crime victim compensation, indigent defense, and crime-stoppers organizations are partially funded by collected court costs. Constitutional separation of power challenges may arise when court cost revenue is used to fund programs that are so unrelated or distant from the criminal justice system that the court cost appears to rather be undercover taxation via the judiciary.
[Last updated in July of 2022 by the Wex Definitions Team]