Role of a Virginia Attorney in an FTCA Case
Below is excerpted from an interview where a Virginia FTCA lawyer answers questions about the value of legal representation in FTCA cases.
Why is hiring an attorney important for FTCA claims?
It is important mostly in terms of the investigation component. We live in an administrative state, and administrative agencies regulate so many parts of our lives that there is almost no way to know how many different agencies you come into contact with in your daily life. Part of what makes FTCA cases so exciting for an attorney is the investigation. We put on our little investigator hat and dig around to find out who might actually be liable. We find out who owns X tree, who owns X vehicle, or who employs X person. It can be very complex and very confusing, and that’s why it’s important to get an attorney involved as soon as you can to sort through all those issues. A lot of times there is overlap. There might be both federal and state agencies involved in the same accident, and you have to sort through all that. The investigation component is probably the most important factor, at least one of the stages with the greatest potential for errors.
In addition to having been through the process before, and having the experience to know what comes next, an attorney can provide encouragement, support, and help the client to keep a positive attitude. Whenever I call to speak with whoever’s handling the claim, having an attorney on the phone does make the ball roll little faster. Sometimes the offices are inundated with claims and they need those six months to get to the file, but, if you have an attorney calling on your behalf, time and time again, they can make sure your case gets the attention it deserves. An attorney can keep constant contact with the claims adjuster to figure out if they’ve got all they need to make a decision. If there is more information they need, an attorney can help coordinate getting that over to them. Any time somebody enters the legal system without representation, it’s daunting, but especially when you’re dealing with the depth and breadth of the regulations in play with the Federal Tort Claims Act itself or the federal regulations that actually bring those administrative agencies into being. It really is a complex system.
What factors do you consider when reviewing a potential FTCA case?
With any personal injury case based on negligence, you have to look for a few things. Liability, causation, and damages are the most important ones. A negligence action is made up of a duty, a breach of that duty, the causation, and the damages. Duty and breach are lumped into liability, and then there has to be causation and damages. That’s the first issue in any personal injury case, and that doesn’t change with the FTCA. We do have to make sure we know which entities are involved and notify the right people, so that’s a large part of the investigation. As far as specific factors, it really depends. It’s case-specific, but, just like any personal injury action, a lot of the same affirmative defenses apply, such as assumption of the risk, or an open and obvious condition. For example, if somebody slips and falls on a puddle, but the government entity had no notice of the puddle, it could be the case that there was nothing that they could have done to prevent the fall. Or if you’re in the cafeteria at a government agency and the person in front of you spills a drink but you don’t see it and you slip and fall, there isn’t really anything that could have been done. That makes proving the liability very tough. Another thing is if something is out in the open and obvious and it injures somebody, then that could be problematic on the liability front.
What are the most common questions clients ask you about their possible claim?
With FTCA cases, there are two very common questions. The first one is, “When is this going to be over? When is this going to end?” Unfortunately, the government has six months from when you put them on notice to investigate the claim, prior to you having the right to file a lawsuit. The other common question is, “When can we go ahead and sue these guys already?” It’s tough because you can’t be premature. It’s important to wait until the cause of action is ripe but it is doubly important when you’re going against the federal government, because with the sum certain, once you put a number out there, if you incur further damages and it exceeds that, that number acts as a cap and you can’t seek any further recovery than that. It’s very important to have a well-developed picture of what the damages are in a case. The two most common questions are, “How long is it going to take?” and “Why can’t we just sue these guys already?” The reason for that is the statutory regime that is in place.
We’ve got to wait until we have enough of an idea of what the damages are, we have to wait until the claim is ripe, and that might take the majority of the full two years in which you have to bring notice. From there, you have another six months to wait once you put the agency on notice. Some agencies might be faster than others. There are all sorts of different branches of different agencies out there, and everybody operates in a different manner, but that six months can really seem like it’s taking a long time. If you file your Form 95 (pdf) (the notice of claim) in June, you may not get a phone call until the very end of November, or even later. I can understand where a client is coming from in that situation, but, unfortunately, those are the rules and we’ve got to work within that framework. An attorney can also call to request updates and to keep in contact with the adjuster assigned to the claim.