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FTCA (Federal Tort Claims Act) Paper

Trying an FTCA Case to the Bench: Practice Tips

ATLA Annual Convention
San Francisco, CA

Ira H. Leesfield
Leesfield & Partners
2350 South Dixie Highway
Miami, Florida 33133
(305) 854-4900

I. Introduction

The Federal Tort Claims Act (FTCA) provides a remedy for personal injury, death, and property damage resulting from the negligence of federal employees. For the purpose of liability, the Act equates the United States with a private citizen. As such, the United States will generally be held liable in the same manner and to the same extent as a private individual under like circumstances. However, unlike most lawsuits against a private individuals, a suit against the United States under the Federal Tort Claims Act is typically tried before the court sitting without a jury.1 As such, you must temper and mold your case and argument to effectively interest and influence the court as opposed to members of a jury. The following is a discussion of several key factors that you should consider when preparing to argue an FTCA case to the bench.

II. Distinctions Between Jury and Non-Jury TrialsA. Know your Judge

In an FTCA case, the judge acts as the sole fact-finder and arbiter of your client’s claim. Accordingly, the first step in trying a case to the bench is to construct a profile of your judge. Discovering pertinent facts about the judge will allow you to tailor your presentation to his or her sensibilities. Likewise, your understanding of the judge’s likes and dislikes will allow you to prepare effective legal arguments. Knowledge of the judge’s preferences enables you to tailor your client, your wardrobe, and your manner of presenting your case. Characteristics worth noting may include judicial opinions and publications, years of experience, education, personal history, family background, life-defining experiences, or likes and dislikes.

The process of gathering information about your judge should begin with questioning attorneys who have experience with the judge. However, don’t rely on any one opinion in crafting your approach; an opinion is merely a subjective interpretation that varies from person to person. In addition to questioning other attorneys, internet searches, judicial almanacs, legal publications, and prior pretrial orders from the judge can be valuable sources of information.

B. Educating the Court

In an FTCA case you will be required to present a trial brief to the court prior to the actual trial. The trial brief essentially is a synopsis of your case. It allows you to educate the court on your theory of the case and it is a perfect opportunity to get the judge thinking about your case prior to trial. In addition, if your case involves novel concepts or difficult legal theories, the trial brief allows you to educate the court on your position. In doing so, your time at trial can be more devoted to other aspects of your case. This approach is often in stark contrast to jury trials, where the litigator must educate the jury during the course of the trial; a task that can often prove to be very difficult.

C. Taking advantage of the trial brief

In a jury trial, the jury knows little or nothing about your case until you begin your opening statement. Once trial begins jurors are flooded with testimony, exhibits, and legal arguments that often prove overwhelming. Most lawyers would derive a great benefit from providing the jury with a synopsis of their case prior to trial; in an FTCA case tried to the bench, such a synopsis is possible. The trial brief is essentially a synopsis of your claim that is provided to the judge prior to trial. It is your opportunity to make a first impression with the judge and to shape his framework for thinking about this case prior to the trial. Attorneys who take advantage of the trial brief are the attorneys who win and who receive substantial compensation for their clients. The brief will be more fully discussed in Part III, below.

D. Damages

Damages in FTCA cases are measured by the law of the state where the negligence or wrongful act occurred. However, the FTCA prohibits punitive damage awards, as well as prejudgment interest. Some commentators have suggested that lawyers tone down the emotional rhetoric when trying a case to a judge rather than a jury. I disagree in part. Judges are human too. Beneath that robe they have feelings just like everyone else. If your case is emotional, then emotions should play a factor. However, the approach should vary somewhat from the course you may take with a jury. In a case tried to the court, the judge is less likely to be influenced by emotion until he has made an initial determination on liability. So time your presentation of the emotional component of your case to reach its crescendo after your arguments on liability.

III. Synopsis of the Trial BriefA. The trial brief

Prior to trial, counsel for all parties are generally required to present the court with a written trial brief. In essence, the trial brief is a synopsis of your case. It is your opportunity to present the plaintiff’s theory of the case, therefore it should be throughly prepared and well-written.

The final brief will be read. Your brief should contain every legal element, argument, and counter argument in the claim. It should include your expert’s reports and an outline of your opening statement. It should also contain a thorough explanation of damages with demonstrative damage exhibits when appropriate. For instance, in a wrongful death case you should include, poems, cards, awards, and photographs.

When packaged properly, the trial brief will give the judge a concise outline of your case while personifying your client and the suffering which has occurred as a result of the injury. The brief should create emotion and empathy for the Court. This “air of emotion” may very well be the key to a large verdict. Ideally, the human element and the legal elements of the case will adhere to one another, thereby creating a powerful tool of persuasion.

B. Brief on applicable law

Pursuant to the FTCA, liability in a suit against the federal government liability is controlled by the law of the jurisdiction where the negligent or wrongful conduct occurred. While Federal law and the Rules of Civil Procedure control the procedural aspects of the suit under the Torts Claims Act, it is state law that determines whether the ultimate facts give rise to a cause of action. The practitioner must be familiar with the applicable law and the court should be briefed on the same.

Keeping in mind that the elements and measure of damages in a Federal Tort Claim are derived from the law of the state where the tort occurred your brief must discuss these elements. In recent years, many states have recently imposed caps on the amount that may be recovered in tort actions. More specifically, damage limits for medical malpractice claims have been imposed in a number of jurisdictions. These developments, where applicable, must be discussed in your brief.

C. Damage exhibits for the court

Damage exhibits are indispensable tools when trying a Federal Tort Claim. One useful tool to include as an exhibit is the “Day in the Life” film. These films provide an excellent documentary of your client’s daily activities and powerful evidence of your client’s physical limitations.

Other damage exhibits worth including are photos, awards, certificates, cards, and poems. These exhibits allow your reader to get to know your client. In doing so, the reader will be able to appreciate first hand the magnitude of the loss. In Grayson v. United States,2 a case involving the drowning death of an enlisted man’s wife and two children, we were able to effectively mesh our damage exhibits with the clients’ claim to humanize the case and illicit the appropriate emotions from the judge. In that case, the items and documents contained in the trial brief allowed the judge to substantially compensate Mr. Grayson. The brief illustrated Mr. Grayson’s outstanding personal nature, his devotion to his family, and his active involvement in his community. We included, poems, love letters, awards, honors, eulogies from friends and families, and photographs.

D. Comparable verdicts and presentation of case value

In an FTCA case, the court has the duty to prepare findings with respect to damages. Although no two cases are identical, the judge will typically require that the trial brief contain a list of substantial verdicts from cases with similar injuries. Likewise, appellate courts have frequently cited a comparable verdict list to justify or question the adequacy of damage awards in cases where similar injuries occurred.3 There is no precise standard used by the judge when deciding damages, but judges must state their findings with sufficient particularity in case of review.4

Useful cases for a comparable verdicts list include decisions by the judge sitting in your case, awards from judges in federal district court cases, and awards from elsewhere in the state. You should also list comparable verdicts from cases throughout the nation if the injuries in those cases are similar. In some instances, the court will average different awards and look to trends when awarding damages.5

IV. Preparing and Trying an FTCA Case to the BenchA. The value of preparation

The value of thorough preparation in a non-jury case cannot be overstated. An attorney’s thorough preparation will more often than not engender a commensurate award from the court. Discovery should be pursued diligently under the broad discovery provisions of Rules 26 through 37 of the Federal Rules of Civil Procedure. Crafty use of the tools of discovery will enable the plaintiff’s attorney to fully explore the weaknesses and strengths of the government’s defenses. For example, internal investigations by various governmental agencies may produce damaging statements and even discredit theories.

In Grayson, our client lost his wife and two young children when his wife’s car went off an unmarked and unlit naval pier at the naval yard in Key West, Florida. Thorough preparation led to the discovery and effective use of the Judge Advocate General’s investigatory reports on the incident. These reports illustrated the fact that the Navy could have provided adequate lighting at the portion of the pier where the accident occurred.

B. The trial brief

The trial brief is the perfect opportunity to educate the court on the plaintiff’s point of view. Therefore, is an essential preparatory tool for trying the case to the bench. The trial brief is discussed more thoroughly in Part III, above.

C. Know the law

While the Federal Tort Claims Act provides a remedy for persons injured by the torts of federal employees, it also presents attorneys with unique procedural challenges. For example, pursuant to 28 U.S.C. § 2401, the claimant must provide, in writing, to the appropriate federal agency, its notice of intent to make a claim. The claim must be for a sum certain and should be filed out on the standard preprinted Form 95 entitled “Claim For Damage, Injury, Or Death.”

In addition, FTCA claims are governed by federal statutes of limitations. Notice of an intent to make a claim must be provided to the appropriate agency within two years after the claim accrues. If the claim is denied, the claimant must initiate suit within six months. Note, there is a different standard under the FTCA than in many state courts as to when a claim accrues for purposes of the statute of limitations.6 As such, the intricacies of the procedural rules related solely to a Federal Torts Claim are of paramount importance and should be fully understood by counsel.

It is also essential to have a working knowledge of the Federal Rules of Evidence. The Federal Rules of Civil Procedure and the Federal Rules of Evidence are binding and governing in a Federal Torts Claim. Attorneys that are accustomed to practicing in state court should take time to study the Federal Rules of Evidence thoroughly. The Federal Rules will guide you in laying the foundation for evidence – real, demonstrative, and testimonial. Proper preparation and familiarity with the law will prevent inquisitions from the judge into the materiality and relevancy of proffered evidence. In Grayson, a thorough understanding of the Rules of Evidence allowed us to put into evidence the Judge Advocate General’s investigatory report on the incident.7 The report indicated that the navy could have and should have provided better lighting on the pier.

D. Create Emotion

Punitive damages are not permitted in FTCA cases. As such, one might conclude that the court would remain guarded against emotional considerations exerting undue influence on awards of damages. Not so. The fact is that underneath that robe, a judge is a person just like you and me. They have families, friends, and feelings just like all of us. Bringing out the emotional component of your case will affect the judge and will increase your award. In Grayson, the court awarded Ivan Grayson almost $3 million for the loss of his wife and two young children. Following a three-day trial, the court found the United States Government wholly liable for this tragedy. In his opinion, the Honorable James Lawrence King stated that the “air of emotion” is apparent in this tragedy. Judge King goes on to discuss and cite Winner v. Sharp, 43 So.2d 634 (Fla. 1949), while describing a parent’s pain from the loss of a child.

For results like Grayson, emotion must be added to the formalities of the case. Accordingly, humanity and loss should be stressed in all wrongful death, malpractice, and intentional tort claims. Don’t save the emotion for trial, use the trial brief to portray the loss and devastation. Items such as photographs, cards, and poems should be included in the trial brief so as to enable the judge to empathize with your client when deciding appropriate damages. Moreover this evidence will illustrate how the client’s family cherished his existence before the commission of the tort.

At trial, emotion should be elicited through the testimony of witnesses. Statements by family members and others should powerfully illustrate the grief and loss. While emotions are spontaneous, there timing and placement throughout the trial can be orchestrated to have a powerful affect on the court. In Grayson, we called the Plaintiff’s mother to testify as to the loss of her daughter and granddaughter. Understandably, with great difficulty she testified about Mr. Grayson’s reaction upon viewing his wife and daughter at the morgue. The testimony was so powerful it was used again during the closing argument.

Lastly, grief experts may be appropriate and can be obtained to testify as witnesses regarding your client’s emotional pain and suffering. In cases where there are unusual or unique elements of loss an expert witness should be obtained.

E. Preparation of Exhibits

Despite the fact that your case is presented to the court rather than a jury, the proper use of exhibits will have an impact on the judge. People in general are better able to understand concepts when they see and hear them expressed. Some exhibits, such as medical exhibits, are crucial in providing visual depictions of your client’s injuries. However, in contrast to a jury trial, not every exhibit needs to be enlarged for presentation. Exhibits should be appropriate for the judge sitting as a one-person jury. In addition, you must be mindful of the time expended in the presentation of exhibits. Although it takes less time to explain an exhibit to a judge, counsel should not forget that the judge has to consume all of the information from the exhibit while ruling on its admissibility. Thus, at times, demonstrative evidence should be used sparingly.

F. Opening statement to the judge

In a bench trial, the opening statement should give the judge a concise outline of your case. Initially you should be focused on liability. A judge is somewhat less inclined to be swayed by emotion and damages until he makes up his mind on liability.

In outlining your argument, you must ensure that there is evidence to support each point. If the case is not complicated, do not give an opening statement that is long. This will only waste the time and patience of the judge. Furthermore, evidence that does not conform to your opening statement will only discredit your case and reduce its luster.

G. Preparation and presentation of testimony

Preparation is key. It is important not only that you be prepared, but that your witnesses be thoroughly prepared. Familiarize your witness with the courtroom and the type of questions that he or she will be asked. In doing so, your witness should become more comfortable with the proceedings. Confidence and comfort will help your witness testify in a clear and understandable manner. An unprepared witness is likely to be nervous and to speak fast and incoherently.

If demonstrative aids are to be used during the testimony, you must practice using the demonstrative evidence prior to trial so as to avoid miscues and stumbling that could be construed as untruthfulness. Accordingly, proper preparation may require several meetings with the client prior to deposition and trial.

When choosing witnesses in a case where your client suffered severe injuries, family members should be used. As family, these witnesses are intimately connected to your client and they will provide the most powerful and credible testimony of any of your witnesses. Family members should testify to the daily activities of your client, before and after their injuries.

H. Your client’s testimony, demeanor, and impact on the court

Your client’s testimony, demeanor, and impact on the court are crucial. The perception that the judge has of your client is similar to the perceptions that a jury will have. If the judge views your client in a congenial way, then the judge will be more apt to listen closely to the testimony. Also, your client’s demeanor will be used to judge his or her credibility, and in turn, your credibility.

Another factor that will bolster the judge’s belief in your client’s claim is your client’s appearance. If a person is respectful, consistent, and comfortable with their appearance, then the judge will feel the sincerity in their claim.

I. Direct and cross-examination of a witness

During direct and cross-examination of a witness the judge will be acutely aware of your demeanor. In order to be effective, you must develop a demeanor within an acceptable range of stoicism and emotion. You must be able to show that you are angry about the wrong done to your client and that you are deeply committed to the case. In a close contest, your demeanor and charm may be of great importance, especially in determining damages. Also of great importance is being perceived as respectful. Disrespect, whether to the parties or to the court, will damage your client’s claim and diminish a subsequent damage award.

Direct examination should elicit the elements needed to prove your theory of the case. It should also include elements that eliminate the opponent’s theory of the case. Direct examination should is also effective in humanizing your client. The direct of family and friends should sound more like a discussion of who this person is and how the injuries he or she now suffers affect their life.

Your witnesses must be credible and trustworthy. If the judge does not trust you or your client, then the judge will deem the witness’ testimony insincere. Factors that lend to credibility include, eye contact, appropriate attire, appropriate emotions, accurate recollection, sincerity, and truthfulness.

Generally, the scope and length of the cross-examination should be enough to let the judge know the pertinent facts, bolster your witnesses’ credibility, and discredit the Government’s witnesses. Again, theatrics will not impress the judge when legal liability is being discussed. Aggressive, yet stoic, cross-examination will reveal the defects in the Government’s case and the testimony will speak for itself in front of the judge. Credible and logical legal arguments should be the goal in a bench trial.

J. Closing argument to the judge in a Federal Tort Claim case

The closing statement should sum up the case and let the judge concentrate on damages. Every effort should be made to provide clear and understandable evidence to support your legal theory. Use the strengths of your witness’ testimony to argue your position. If standards were violated, show how the standards were violated, how the violations caused your client’s injury, and that there are no exculpatory explanations.

While arguing the strength of your legal case, continually build up the adequacy and veracity of your witnesses while simultaneously attacking the credibility of the Government’s witnesses. If your experts are better qualified, then highlight this too. Ideally, in a short amount of time, the judge should find no reason to rule against your client and feel obligated to move on to determining damages.

At this point you should move onto arguing the damage elements of your case. Remember, this is where emotion comes into play. In a wrongful death case, let the judge hear the testimony of the grief expert and feel the finality of death. Give specific factual examples of the horrors your client has experienced and the horrors that he or she will continue to experience for the rest of their life. In essence, make the judge walk the path that your client walked; before, during, and after the injury or tragedy. In conclusion, seek to empower the judge by acknowledging the completion of your job and the beginning of his duties.

128 U.S.C. Section 2402.

2 Grayson v. United States, 748 F.Supp. 854 (S.D. Fla. 1990); rev. in part/vac in part 953 F.2d 650.

3 E.g., Lebron v. United States, 279 F.3d 321, 326 (5th Cir. 2002). Courts refer to this as the “Maximum Recovery Rule” whereby an award will not be reduced if it is proportionate with at least one factually similar case from the relevant jurisdiction.

4 Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745 (1956).

5 See, Williams v. United States, 681 F.Supp. 763 (N.D. Fla. 1988).

6 See, U.S. v. Kubrick, 100 S.Ct. 352 (1979)(Statue of limitations begins when client learns of injury’s existence and cause of injury); See also Green ex rel. Green v. United States, 172 F.3d 56 (9th Cir. 1998) (knowledge that the injury was negligently inflicted is not necessary for accrual); compare, e.g., Bussineau v. President and Directors of Georgetown College, 518 A.2d 423 (D.C. 1986)(For cause of action to accrue, one must know of injury, of its cause in fact, and that injury was negligently inflicted).

7 Federal Rule of Evidence 803(8)(c) -Public Records and Reports. See also, Beech Aircraft v. Rainey, 488 U.S. 153, 109 S.Ct. 439 (1988) (holding that portions of investigatory reports otherwise admissible under Rule 803(8)(c) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report).

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