Proving Damages in a Federal Tort Claim Case: Trying Your Case to a Judge

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

I. Distinctions Between Jury and Non-Jury Trials

A. Know your judge.

B. Educating the court.

C. Taking advantage of the Trial Brief.

D. The value of preparation in a non-jury case.

E. The use of exhibits.

F. Direct and cross-examination of witnesses before a federal judge.

G. Federal Rules of Evidence.

II. Preparing and Trying The Damage Case To A Federal Judge

A. Is there room for emotion? see Grayson v. United States of America, 748 F.Supp. 854 (S.D. Fla. 1990); rev. in part/vac. in part 953 F.2d 650.⁽¹⁾

B. Preparation of exhibits for the court vs. jury.

C. Preparation and presentation of testimony -- court vs. jury.

D. Significant damages award -- court vs. jury.

E. Cross-examination to the court on damage issues.

F. Opening statement to the judge on the issue of damages.

G. Your client's testimony, demeanor, and impact on the court (vs. jury).

H. Closing argument to the judge in a Federal Tort Claim Case.

III. Legal Arguments To The Court -- Use of The Plaintiff's Trial Brief

A. Standard jury instructions and governing damage statutes in a non-jury trial.

B. Utilization of similar and comparable verdicts. See Grayson v. United States of America, 748 F.Supp. 854 (S.D. Fla. 1990); rev. in part/vac. in part 953 F.2d 650. See also Johnson v. United States of America, 780 F.2d 901 (11th Cir. 1986)⁽²⁾; and Williams v. United States of America , 681 F.Supp. 763 (N.D. Fla. 1988)⁽³⁾.

IV. Synopsis of The Trial Brief⁽⁴⁾

A. Brief on applicable law; i.e. Rainey v. Beechcraft , 109 S.Ct. 439 (1988).⁽⁵⁾

B. Damage exhibits for the court; i.e. Day-in-the-Life Film, photographs⁽⁶⁾, awards⁽⁷⁾, certificates⁽⁸⁾, cards and poems⁽⁹⁾.

C. List of comparable verdicts and presentation of case value⁽¹⁰⁾.

V. Comprehensive Discussion of Rainey v. Beechcraft⁽¹¹⁾VI. Other Important Damage Cases:

Reed v. United States of America , 891 F.2d 878 (11th Cir. 1990).

Varney v. United States of America , (settled during administrative process).

1. Exhibit 1 - Judge King's Opinion.

2. Exhibit 2.

3. Exhibit 3.

4. Exhibit 4, Table of Contents.

5. Exhibit 5, Table of Authorities.

6. Exhibit 6.

7. Exhibit 7.

8. Exhibit 8.

9. Exhibit 9.

10. Exhibit 10.

11. Exhibit 11.

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