Navigating Federal T ...

Navigating Federal Tort Claims on a National Scale | Tom Jacob

March 14, 2024 | by D. Todd Smith

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Suing the federal government can be a daunting task. In this episode, Todd Smith and Jody Sanders sit down with Tom Jacob, a partner at National Trial Law in Austin, Texas, to discuss the intricacies of litigating cases under the Federal Tort Claims Act. Tom highlights the groundbreaking Sutherland Springs mass-shooting case, in which his firm secured a $230 million verdict against the Air Force. He also shares insights into the role of technology in legal practice, including how he leverages his coding skills to streamline his work. Join us for an engaging conversation about the intersection of law, technology, and advocacy.

Our guest is Tom Jacob from here in Austin. Tom is with National Trial Law and we’re going to learn a lot about Tom and about what National Trial Law does. Tom, with that, I’m going to kick it to you and introduce yourself to our readers, if you would.

Thank you for having me on. My name is Tom Jacob. I’m a partner at National Trial Law. Our practice is catastrophic personal injury and medical malpractice with my particular focus being against cases against the federal government, so the United States and its agencies. These cases run the gambit of everything that you can imagine that’s a tort, personal injury. Our lawyer audience probably knows what a medical malpractice case is, but those personal injury cases can be very diverse.

I’ve had cases where it’s an army convoy running a red light, hitting our client or had a building fall on my client. I’m working up a case where a bomb exploded and my client was injured as a result. It is a diverse practice. A good chunk of my cases are also in the gun violence area where we as a firm are trying to do something about the mass gun violence that we have in our country. That started with our involvement in the Sutherland Springs mass shooting case and the shooting that occurred in 2017 and the two trials we add throughout. That’s a high-level overview of my practice.

We’re going to get into all of that in more detail, but as a little bit more background, you’re a UT guy and a Baylor Law grad. I understand from chatting with you offline that during your time between UT and Baylor Law, you did something that most lawyers can’t say that they’ve done. You spent some time doing computer programming. Is that right?

Before and after. Throughout undergrad, I’ve always had a technologist’s guy. I am a self-taught programmer and had jobs here and there doing various coding, programming and consulting. I took a year off between undergrad and law school. That basically was my full-time job. I’ve done a good chunk of all sorts of technology-related jobs, if you can call them that.

I try to keep that up because I like using technology, whether it’s off-the-shelf products or stuff that I’ve written myself in order to make my practice more efficient. I try to help in that area of getting small programs that can help my staff do basic document processing done faster and more efficiently as well. I keep that tool sharp, if you will.

In this day and age, with all the proliferation of AI and general technology in our face every day, I bet that has to come in handy in your practice to be able to have a deeper understanding of those things than the average lawyer.

It goes so far. I run my own local models to help me because you have privacy implications with any AI product that you use and running stuff locally. That shortcuts all that issue because none of your data is going anywhere.

That’s a big thing we hear about is, what are you putting in the cloud or out there and available for someone to mine and index? Are you feeding the large language models yourself? Which we’ve talked about. Believe it or not, Tom, we’ve discussed large language models a fair amount on this show, especially in recent times.

It’s going to change the way we practice law for sure. That much is clear.

It’s good to have the background understanding because every week, I see a head where a lawyer is in trouble using AI. Not understanding what it does and how it works and relying on things that turn out to not be true.

It is just like any tool. The more you understand that tool, the better that you can use it. I feel like lawyers now would be like a layperson getting on Westlaw trying to do legal research with AI. That’s where we are and we need to be better at using it as a profession.

It’s unavoidable. We’re suggesting earlier, Tom, so 100 % agree on that. You had that time in between and you’ve got this ongoing interest in technology but what led you to the law and specifically to your decision to become a trial lawyer?

That’s the other interest I’ve always had. I’ve always been into some form of speech or advocacy even in high school. I didn’t know a lot of lawyers growing up but then when I went to UT, I joined the undergraduate mock trial team at UT, a great program. It’s a funny little story. One of my coaches at the undergrad mock trial team was Jamal Alsaffar, who is now my law partner. After getting out of law school and joining up with him and Lori in their practice, I started taking over and I became the coach of the undergrad teams at UT.

Wouldn’t you know it, one of the first students that I ever coached was Steven Haspel, who is one of our associates now. We have this nice little firm legacy of folks that come up through that program. It is a wonderful program. I like to say that the program puts out very smart people. Not being biased. Folks that if you did the numbers, you would see a lot more for the small number of people that that program puts out. You see a significant majority of them going on to much fancier law schools than Baylor Law School like Harvard and Yale. It is a very good program and I’m glad that we’re happily supporting it. To put a bow on this little story, Stephen is now the coach of the UT Undergrad Mock Trial Teams.

 This generational dominance, it seems, with the folks that you’re working with. That’s awesome. From doing a little background reading getting ready, I see that you continued your involvement in mock trial with your Baylor and had quite a bit of success with that, I would say.

A lot of the success that I’ve had as a lawyer is you can trace directly back to those advocacy programs that we were looking to have and take part in high school, undergrad, and law school. Great lawyers that we got to see when we were trying cases. I remember once in law school, we were on one of the teams and we were trying a case. They invited a lawyer from East Texas to come and watch us try the case.

During one of my crosses, he stopped me and using only open-ended questions. He demolished this witness. It was mind-blowing to me about how you’re always taught these fundamental rules of asking closed-ended questions and cross-examination. You see these amazing lawyers with their different styles of doing things. That brings you to a new level.

We do not have enough guests on this show that have your perspective. We’ve had a lot of judges, trial and appellate judges. Not just appellate judges and a decent amount of our appellate lawyers, brothers and sisters in the bar but it is a treat for us to get to pick the brain of a trial lawyer. A trial lawyer who tries cases.

I will say, in a lot of our cases that we do the run-of-the-mill medical malpractice case, we’re doing all the briefing. I’ve handled all the appeals. A lot of that stuff it’s not legally complicated. Those are cases that are complicated but then we do a good chunk of cases that are very cutting edge, the gun violence cases. The cases that involve new or interesting applications of law. That is when I like to say we want to get some adult supervision and get an appellate lawyer, making sure we’re doing everything right, dotting the I’s and crossing the T’s. It’s very helpful to have that.

That makes me laugh. I’m going to steal that one, but that one in the bank, Jody, for some of the phrases that we’ve come away with over the years of doing this show. I like that adult supervision. I would be remiss if I didn’t also ask you about your clerkship with Judge Garwood. We talked a fair amount on the show about judicial clerkships and different people’s paths to them. You clearly had a successful law school career and I’ll throw out there that you were number one in your class at Baylor. I’m sure you had a lot of opportunities coming out of law school. How did you wind up clerking for Judge Garwood? Tell us about your experience.

Again, I’m a very firm believer in being at the right place at the right time. Opening yourself up to the opportunities. It was one of those situations where I was in the right place at the right time. I was applying for a lot of clerkships and this one in particular came up because weirdly, different people in my life had some connection to Judge Garwood. Using those connections, I had an interview with him and that went well. He offered me a job on the spot.

You don’t say no to a Fifth Circuit Judge and I accepted on the spot. To any new lawyers that are reading or even law school, I would agree with you. Clerkships are a wonderful experience. The law clerks that we had in our chambers as well as in our building, we were in the Austin office, the old Homer Thornberry building on 9th. All those clerks, we still keep in touch. We still talk every so often. There’s a group chat that we’re a part of.

It’s a great tiny community of folks that you could draw on and ask odd legal questions every so often too. Also, just questions about barbecue and that stuff because most of them don’t practice in Austin anymore. They’ve dispersed. One is a screen or a playwright. A wonderful experience. You get a lot of legal experience. It is invaluable and you can’t replicate that. For me, the number one thing that I took away from that was long lasting relationships with my co-clerks.

Do you have any specific advice for law students who are interested in applying to the Fifth Circuit? We had some conversations with guests about this. Maybe not as much as in detail about the Fifth Circuit as opposed to state or clerkships, which is my particular experience. Any advice for law students who are interested in clerking?

I’m sure whatever advice I give is going to be a little bit outdated. I did this over a decade and I know things have changed. I know back then they were doing that. They had the Oscar program and they were rules on how you apply. I don’t know anything about that anymore. All I can tell you is if you want to do an appellate clerkship, don’t forget the district courts because there were certainly, at least in my time and at least half of the clerks that we had were not straight from law school.

I was lucky I went straight from law school, but half of them were district court clerks who then applied for a Fifth Circuit clerkship and got it. I will say, I will include myself in this bunch. Those district court clerks were the best of us. They were good and part of it is the practice in both in front of a district court and I’m sure behind the scenes is a lot more fast paced than what you all know in the appellate courts a little bit slower.

District court clerks had to get a lot of stuff done quickly and their product had to be great. That type of pressure produces people that can write well and write well fast. I’ll be honest, compared my work product to another clerk who was a district court clerk. It was better because they had that experience that I didn’t have.

That was a valuable learning experience. That would be my advice, don’t forget the district courts if that’s what you want because they are a pathway to getting you a clerkship on the appellate court. If that’s your ultimate goal, you want to be an appellate lawyer. I can certainly see why that is but that’s what I would say.

That seems akin to what we’ve talked about sometimes about there being a benefit as an appellate lawyer to having spent some time working in trial courts and doing trial work. You get that little different perspective that gives you probably more appreciation for what happens at the trial court level. I get what you’re saying.

I can see the value, especially the increased pace, the faster pace of district court operations and that translating into the appellate side. That’s a very interesting comment. I’m glad you brought that up. You mentioned Jamal Alsaffar and Laurie Higginbotham. I don’t think he mentioned her last name, but you went to work with them. They had their own firm as I recall. Was that where you went after Baylor or after your clerkship?

Again, this is another story of right place and right time. They might tell the story a little bit differently. What I like to tell it is, at the time, Laurie and Jamal are married, for our audience that may not know this. At the time, Laurie was pregnant with their third and they had more work than they knew what they needed to do. They were looking for someone and I was finishing up my clerkship. I was planning on going back to Dallas where I grew up. I loved Austin. I wanted to stay in Austin and it so happened to be the melding of the right place and the right time for both of us.

I’ve been practicing with them ever since. In 2014, we merged with the Whitehurst Firm, which is one of the oldest PI firms, if not the oldest PI firm in Austin. It’s been a wonderful ride.

Essentially, going back within the last couple of years, that firm formally changed its name. This was after the disciplinary rule changed, allowing everyone to use trade names.

Our formal name is still a long list of Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob PLLC, but we do business as National Trail Law. It’s a lot easier for our staff to say when they pick up the phone and our clients understand it a little bit better. It’s the marketing we all have to do as lawyers in terms of addressing our clients. It’s always a work in progress.

Everyone knows what your firm does, at least on a surface level by the name you operate under. There’s a lot of value in that.

It is accurate in the sense that we try cases all across the country. We do these federal tort claims act cases that I’ve been doing my entire career everywhere. At this point in my career, I’m having a hard time remembering a state that we haven’t at least had an administration of proceeding in. I’ve tried cases in New Hampshire, Mississippi, Arkansas, California, the West Coast, and all across the country.

You’ve mentioned handling med mal cases and like Michelle Chang in your office, I know has historically done a lot of med mal work. Within the firm, is it a mix of that more localized Texas practice along with the big Federal FTCA type cases?

That’s right. When we merged our practice with the Whitehurst group, we created this tagline. It was Lori that created it, Texas Roots National Reach. The idea being we have Texas roots. We love this state. We want to continue that catastrophic PI and malpractice in the state of Texas, but also continue our national practice as well of representing veterans, military service members and their families across the country.

We’re going to talk about some of your cases, specifically Sutherland Springs, because everyone reading this has heard of it. You mentioned having gone through two trials in that matter but maybe we should start considering the nature of your practice with a quick overview of maybe the FTCA in terms of how that fits. It makes me think about bankruptcy lawyers who are able to go anywhere in practice because the law is basically the same. I don’t know if that’s true for the FTCAs. Tell us a little bit and educate us some on how it works and how the kinds of cases that you’re working on fit into the FTCA.

It is true and it is not true both at the same time. That’s part of the beauty that is the FTCA. It’s funny, I talk to a lot of lawyers across the country about the FTCA, about cases against the government. I will tell you that a significant chunk of lawyers don’t even know that you can sue the Federal government. The number of cases I’ve come across my desk, clients that have come and said, “You folks, on your website, you say you can sue the government for medical malpractice and PI but this other lawyer that I called first told me he can’t take this case because you can’t sue the Federal government.”

It goes back to that whole, the king can do no wrong and sovereign immunity. You all know that. FTCA is the broadest waiver of sovereign immunity in our history. It’s meant to be a sweeping waiver of sovereign immunity when the government commits a tort like any private individual would. That’s why I say it is and isn’t uniform across the country that all the federal procedural stuff is fairly uniform.

As Pellet Lawyers, you probably know local. You got to pay attention to the local rules and the local-local rules. The FTCA also imports the state law of negligence as the substantive cause of action that you have against the federal government. If you can sue a private individual for a tort in Texas under Texas law, the idea is you should also be able to sue for similar conduct if the government does that similar conduct. It’s the analogy that the FTCA draws.

That ties in to the Sutherland Springs cases you were mentioning because this background lies, to date is still the Texas’ worst mass shooting in our entire history. We had dozens of people that killed or injured in the shooting when a gunman went into this small one room church outside of San Antonio and committed a massacre. That’s the only way you can describe it.

If you folks travel back in time to 2017, at that time, we were doing a lot of Federal Tort Claims Act cases. That was a big chunk of our docket as well as the state’s med mal and PI similar to now. Laurie came in to talk to Jamal and I. She was the one that thought of this. What happened in the Sutherland Springs case, that shooting was the responsibility of the government. That’s how she started out. She was like, “Look at this article.” She pulled up a couple of articles where the government and the investigators had found that the shooter of the Sutherland Springs shooting was previously convicted of a felony of domestic violence and child abuse.

For those of you all who have any familiarity with the Brady Act and gun control measures, you know that if you have a felony and/or a domestic violence on your record you’re not allowed to buy guns. The biggest question is how did that shooter get those guns if he had this record? He was an Air Force airman and the Air Force had convicted him of these crimes, how did he get those guns? It turned out that the Air Force failed to report him to the FBI’s background search system.

It comes back to the FDCA and we’re thinking to ourselves, “If this were a private individual, surely they would have some responsibility for that failure to report.” That’s what started us on this five year case against the Federal government, which ended up resulting in a $230 million verdict against the Air Force after two month and a half trials, separate trials. One on liability and one on damages. That’s the overview.

I always like to say, the biggest result that we got from the Sutherland Springs case is not necessarily the verdict. That verdict changed the lives of the families that were injured. It allowed them to get the medical care that they needed. It allowed them to get a lot of the therapies that they needed for those who survived and for those who lost folks. It also forced both in a conversation about gun violence in Texas and the country. Also, forced the Federal government to take all of those people that they failed to report.

In that work of that case, we discovered that there were thousands of people that the Air Force had failed to report to the FBI. By failing to report when you go and buy a gun at Academy or Dix or any gun seller that’s out there, they have to do a background search on you. If they’re not in that system, if they’re not in that FBI system, then the seller is free to provide that weapon to these individuals. There were thousands of these people that the Air Force had failed to report.

In the process of that lawsuit, the government had to correct that mistake. They had to go back, find all of those people that they failed to report from the Air Force and provide them to the FBI. Those are all people now who are not able to purchase firearms because of their history. You can only imagine how many lives have been saved as a result. It’s not every day that you as a lawyer get to take part in something that has that big picture change. A lot of times, in my practice as a trial lawyer, I’m trying to help one family in any given case. I’m trying to make their lives a little better. This was truly an opportunity to make the entire country a little safer.

Using the tort system for the reason that it’s intended almost.

It effectuates. That broad change from what started off as one case. That’s what we’re taught, your first day of torts in law school. The prof is explaining to you what a tort is and the reason why torts exist. One of those reasons is to be a check and balance against those who don’t act under the standard the law would hold them to. That’s an amazing result. I remember the case. I remember your firm being involved in it. I’m in awe of the outcome. It originated from Texas. Was the trial in the Southern Springs area?

Yes, it was in federal court in San Antonio. One thing a lot of lawyers don’t know about the FTCA is you don’t get a jury trial. You are trying the case before a Federal judge and he is the sole decider of finding the fact and conclusions of law at the end of each trial. Those are your factual findings. In each one of these FTCA cases, you are having to convince a federal judge of the merits of your case.

Federal Tort Claims: You don’t get a jury trial in FTCAs. You are trying a case before a federal judge, the sole decider of the facts.

That’s not an easy thing to do.

Especially against the Federal government and all of that. How did that case end up procedurally? Was there an appeal?

They did appeal to the Fifth Circuit. We even got to the point where they filed their initial brief, but we mediated the case at the Fifth Circuit and were able to resolve the case before we filed our responsive brief. It did get up to the Fifth Circuit. It has, I can say, as of the end of 2023 has finally resolved for all of the families.

Did you use the Fifth Circuit Mediation Program? I don’t think we’ve talked about that on this show, but it is a great program.

That’s exactly how it happened. We used the Fifth Circuit Mediation Program in the sense that we had a mediator assigned to us. The mediator took a sign and said, “What’s it going to take to get it done?” We said, “If this is going to be resolved, we need to bring in an outside mediator who had the experience of dealing with mass ports like this.” That was the root. We went to DOJ in DC. We spent a day up there mediating the case. It didn’t get settled immediately, but that was the starting point, the Fifth Circuit Mediation Program to get that case resolved.

Did you all in the firm, I know you had other lawyers doing other things but this had to be all encompassing like all hands-on deck. Is that how it worked?

We were lucky that we have these great law partners who were able to keep the firm afloat while Jamal and I focused almost all of our attention for a couple of years of discovery where all we were doing was Sutherland Springs. To give you a little bit of context, the discovery portion of Southern Springs hit right before the pandemic. We started taking a whole bunch of depositions. We were flying across the country taking these depositions, then the pandemic hit.

The government wanted to shut everything down and they’re like, “We can’t do anything now.” It took a little bit of convincing because we had previously done Zoom depots. It turned out a blessing in disguise, the pandemic for us because we could then do way more depositions than we were able to a number of fact witnesses in the case requiring deposition. A lot of the fact witnesses were military or former military and they were all across the country.

By doing these Zoom depots allowed us to take you know deposition on Monday, another on Tuesday, and two on Wednesday. That back-to-back allowing us to get a lot more in a compressed time frame. We disclosed experts. The one thing that we did differently in that case, I’ve taken as a lesson for future cases is because we had so many fact witnesses, we kept having to push back our discovery, our expert deadlines, and our discovery deadlines.

By the time it got to both sides disclosing experts, we only had a few months left like 2 or 3 months left in the whole discovery until the close of discovery. We had to make a strategic choice. We could ask to depose all of their experts. They wanted to depose our experts, which we got them and that was fine. We could ask to depose all their experts, but if we did, they were probably going to want to push back a trial date. We knew that the trial was the only thing that was going to resolve this because up to that point, as a policy matter, the government didn’t want to negotiate because it was such a different type of case than they had ever experienced before.

We made a strategic decision not to depose any of their experts. That worked out in our favor because we didn’t know where we were coming from in terms of the questions that we were going to ask. Jamal and I we were talking about this. We knew that we would know the record much better than these experts would know the record. We could use that in our favor. We went into that trial dozens of experts on both sides without any deposition testimony from their experts at all.

Not even like historical deposition testimony because some of these experts are folks that they called up, the Harvard guy that was responsible for gun violence and asked him, “Would you be willing to testify on our behalf on this case?” It was no under oath testimony whatsoever. All we had were the report that the expert gave us and all of the millions of pages of documents that had been produced in discovery. That’s another story in and of itself.

I suppose this is where having a bench trial would be an advantage because in a jury trial, what you did to depose the expert and impeach the witness and so forth, might be a little more of a theatrical moment but it seems like the Federal district judges, was it Judge Rodriguez that tried the case?

That was Judge Rodriguez.

He certainly knows what the deal is, and so would be able to see. It wouldn’t have as much impact probably from a trial presentation standpoint. It wouldn’t seem. No expert on this. That’s a bold strategy, but I can certainly see how the only way to get the Federal government to the table with that trial date not only looming but that didn’t have a occurred and for you to get the outcome that you got. Before I forget, I wanted to ask you, because FTCA being statutory. I was curious about whether there’s a provision for fee shifting in that statute.

No, the FTCA has a tap on fees. It’s a contingency fee like any other plaintiff’s case. You can charge up to 20% if you don’t file suit and 25% if you do file suit. That’s in the text of the FTCA.

It regulates your attorney’s fee as part of the substantive claim.

That’s one of the few, at least federal statutes I know of that regulates a contingency fee.

I don’t know of any other example of that. We hear in our state sometimes that there’s a push in the legislature toward capping contingent fees that might go along those lines but it hasn’t gotten any traction, thankfully, in state law. That’s super interesting. I don’t want to move on from Sutherland Springs if there’s more to discuss about it but that’s an example of just being able to take the law and do good.

Also, your firm is an extremely reputable plaintiff’s firm, but you’re going up against the Federal government. This is classic David versus Goliath, it seems like to me. I can’t imagine what that must have been like, then going through trial in that situation. How many lawyers did the Fed show up with?

It’s funny that you say that because I’ve had a US attorney tell me once that the US attorney’s office is the largest law firm in the entire country. That’s probably true given the number of lawyers. They do both the criminal side and the civil side. They have offices in every district across the country. In Southern Springs, it was DOJ from DC that was in-charge of basically all parts of the case.

They were working that case up. They had multiple lawyers from DC that were flying down to try the case and they recruited because even the numbers that they had was not sufficient to run a case like this on their side. They recruited the local US attorneys from the San Antonio division to help them with all different one-off type witnesses and fact witnesses. That type of thing to get records, damages, and workup damages. We got to see and meet a lot of folks in the torts division from DOJ. We already knew a lot of the folks in San Antonio from our FTCA practice, but got to work with them as well. Quite a number of lawyers.

With it being based on underlying state law for your claim, if state law permits exemplary damages, do you get them against the government?

The federal law forecloses that portion, the punitive damages claims.

What about in places outside of Texas where you do these claims? Do you typically have a local counsel or maybe both procedural and substance?

You need to. That’s part of doing this type of national work, that having that network is very important across the country. That’s a large reason that we are very involved in the national organizations, the National American Association for Justice. Very involved in that because you meet all these great lawyers from across the country. You can collaborate on these types of cases and having the local counsel is just as important as having good appellate counsel in those complicated cases.

They provide you not just substantive law-wise but flavor of the judge that you’re trying your case. What is he or she like? What do they do? What do they like? What are they not like? I have a funny story. I was trying a case once, and this was several years back. Our local counsel, he’s a great guy. I love him. We tried the case, and at the end of the case, we’ve done packing up. He comes up and he’s like, “Knowing what I know of our judge, I think you folks did a good job. We’ll have a good result.” I was like, “Sure, What do you know?” “She worked for me for a few years early on in her career.” I’m like, “You might have led with that.”

No doubt. I’m curious if you’re primary concern in trying a case in a locale that you’re not that familiar with those kinds of relationships you just described, the law and procedure. Whether local counsel, you might be well suited to have an appellate lawyer as local counsel. Do you see those kinds of crossovers?

I’m not articulating this question very well but it seems like if you thought that there could be an issue later in the case. I don’t want to step on anybody’s toes who makes some of their money being local counsel is a trial lawyer but it seems like there might be some value in having someone, an appellate lawyer who’s similarly well connected, who could advise you on some of the landmines and the things to look out for under the local law.

I don’t think we discriminate on who our local council is necessarily. The key when we’re looking for local council, we’re looking for folks that have great reputation in their community. That’s my number one, even more so than knowing the local law. I can get on Westlaw and research like Arkansas Medical Malpractice tort law, just as well as the next guy. I’m not so much concerned about the substantive law. Although, a lot of times local counsel will say, “We’ll have counsel. We’ll have toxins. Are you familiar with this random statute?”

Don’t get me wrong, that’s helpful. The number one concern for us is that their reputation in the community and their ability to guide us on who are the good mediators, you have a slate of so many judges, what are their preferences? Each judge is going to be unique in terms of what their preferences are and what their preferences aren’t. When I do these trials, one of the things I’m big proponent of is the visual art of storytelling.

It’s not enough to say the thing that you want to say. It’s not enough to ask the witness the question. You need to incorporate those that visual element, video, all that stuff into your presentation when you’re telling a story. A lot of judges do love that. When it’s done, right the judges will love it. They’ll say, “That’s helpful to me because I see this exhibit. Let me write down the page number for when I have to write the findings of fact. Let me write down the exhibit.”

Some judges would prefer not to look at it. Those judges are in the minority. It’s going to be a good local counsel that will tell you this is the type of demonstrative that your judge will like versus, “Don’t play a bunch of video. Judges won’t even look up if you’re playing video. They’ll just glaze over.” That is invaluable information.

Especially when you know who your factfinder is, that’s incredibly valuable.

You get more intelligence on the tendencies of your factfinder with a bench trial than you ever could with a jury.

For appellate folks, imagine if you knew your panel who was going to be deciding your opinion three years before you were arguing that case.

That’s basically what it is. For me, I get to know who the finder of fact is when I file my complaint.

You’re working up a dossier basically sounds like and rightfully so. Nothing wrong with that. You’d be wrong to not do it.

You don’t want to waste their time. If there’s some piece of evidence or some information that you know they’re not receptive to, why waste their time beating a dead horse? Instead, you can focus on the information that they will find helpful to resolve the case.

Tweet: Lawyers must never waste the judge’s time. Do not linger on pieces of evidence they are not receptive to and instead focus on information they actually find helpful to resolve the case.

You’ve touched on the national networks that your firm has plugged into. Is it reasonable to assume that the way that you all get involved in some of these cases in these faraway locations is because of those relationships or they are referred to you by folks who are local who are also plugged in?

It’s a situation where a lot of folks across the country know that when they have an FTCA case, they can come to us and we can add value to that case in terms of both the relationships we have with the US Attorney’s Office and the agencies because we’ve done this so much. We’ve met a lot of these folks, but also our expertise in dealing with the pitfalls. I’ve given multiple presentations to lawyers across the country about, “Here are all of the traps you need to know when handling an FTCA case,” because there are a lot of traps.

It’s a Federal law. It’s pretty strictly construed in terms of meeting deadlines, meeting the prerequisites, and so we can bring a certain amount of expertise when there is an FTCA case, when there is a case against the Federal government to bear. I would say just as many, we get clients who are looking for lawyers who have expertise in suing the Federal government. They get on Google search and Bing. They’re looking for information about how to sue the government. Clients reach us that way. They stumble upon our website and say, “You’re exactly what I need.” We offer free consultations and talk them through, whether it’s a case that we can help them with or not.

I would be remiss if I didn’t follow through on some of the technology-related stuff that you mentioned at the beginning because we like to talk about that stuff here. Neither Jody nor I are experts in technology. I’ve certainly never coded my own app unlike you, Tom. In terms of the things that you’ve been able to play around with in your practice, I’m curious about particular uses of technology that you’ve been able to implement to improve your practice.

I can’t remember if we were talking about this before the show or if we touched on it already. I talked to you folks about how in a past life, I was a podcaster. I hosted a show with two of my good friends, mostly as an opportunity to get together once a week and talk. Instead of picking up the phone, we recorded a show together for several years. This was all pre-pandemic. In the process, we being technology nerds, we got the boom arm, the mics, and the headphones. We needed to make a quality show out of it.

It just so happened, we started having families and children as the pandemic hit. That took away our time to podcast that ended our show then the pandemic hit. I had all this great technology that I transitioned to the Zoom era. That’s been the story of my life, being in the right place at the right time. Leading up to the pandemic, one of the things that we had been doing, was Zoom depositions.

When you’re doing a national practice, it does get expensive to have to go in-person and fly to take these depositions or do whatever it is that you need to do across the country. We only have so much time in our lives. If you’re having to grow across the country where you’re spending a day of travel getting there, then probably a day of travel getting back. That’s three days that you have lost that you’re unable to work on another case or you’re unable to work on this case and push it in another way.

Federal Tort Claims: When handling cases on a national scale, having a network is important. Getting involved in national organizations is necessary when crossing the country.

One of the things in pre-pandemic that we had been doing was taking Zoom depositions. To tie back to your technology question, one of the things that annoyed me about Zoom depositions is when you go in person, you can bring a bunch of documents. You can put them in front but there’s no real way in Zoom to provide a document to a witness.

That’s when I was like, “This is a technology problem and technology can solve this.” I created this little app that plugs into Zoom in the screen sharing features that allows me to quickly share certain pages from my discovery file. I can say, “Mr. Witness, I’m going to show you on your screen a document that’s bait stamped NTL 2515. Do you see that?” I can lay my authenticity and predicates using the bait stamp and the share screen.

Federal Tort Claims: When doing a national law practice, it could get expensive because of the trips you need to take. Online depositions allowed lawyers to work on several cases without having to waste time traveling.

It turned out that also helpful in the in-person depositions pre-pandemic because I can take an iPad with me. Put the iPad in front of the witness and I can use my same app to display those same documents to call out. If you guys use like trial pad, it’s a similar type of thing in some senses. Mine’s a little bit more unique to my practice and the stuff that I personally want it to do. That was a perfect flow into the pandemic era where we’re all doing Zoom depositions where I fire up this app. I can integrate into Zoom where I can share my documents. I can annotate a document without sharing my annotations.

All that stuff made that a lot easier. I can plug that app into all the other apps that I use, my outlining apps, and my Word documents where it becomes easy to cite the record and the documents in the file when I’m writing a brief. For me, it’s a matter of convenience. I’m one of those people that I’ll spend a lot of time doing stuff up front if it can save me on a routine task down the line.

You’re solving a specific problem. You have to know how to create something that solves a specific issue that you’re having in your practice and therefore makes it better. I’m curious about whether you’ve convinced anyone else in your firm though to use your app.

I know several people use my app when they do the deficit. I’m not quite ready. This is a big debate we have in our firm about commercializing some of these technologies. I’m not quite ready to do that because it’s a real mental burden on me, the idea of having to support other people. I prefer to say I’m just making this app for myself. If it doesn’t work for you, good luck. If you commercialize something like that, then you can’t say that.

The external expectations of other people would make it probably less fun and useful for you. That’s a cool example. I’m pleased to hear about that. There’s so many resources for solving specific problems out there in the marketplace, but there’s not too many of us who can say they can create their own resource. That’s pretty neat.

Sometimes, it’s a matter of displaying information in the way that I like it to be displayed. I have rules of evidence app that I made, which is due to be updated. I need to get on that. That’s one of my to-do list items, is to update my rules of evidence app. I prefer it displayed in a particular format that allows me to quickly pull up a specific rule or a specific procedure rule. It’s all Federal rules, Federal Rules of Evidence and Federal Rules of Civil Procedure in Title 28, which are the three federal bodies of law that I like to rely on regularly. There’s nothing fancy there. It’s a matter of taking that information and displaying it in a manner that is very useful and fast to get at information.

Tom, one of our traditions on our show as we wrap up is to ask our guests for a tip or a war story. I wonder if you’ve got anything you’d like to add that maybe you haven’t told us about yet.

You \appellate lawyers have done cases across the country. The big tip that I can give is know your local rules. I’ll give a war story based on that. In the Western District of Texas, there is a local rule that says, “Any party can send the following interrogatories and you can’t object to these interrogatories.” You must answer these interrogatories.

When I’m in the Western District of Texas, I will send those to those interrogatories. Throughout my career, when I send a discovery request where I’m entitled to some information, I’ve always gone back and forth on whether I include the citation to the rule saying I’m entitled to it. In this particular case, I always cite that local rule saying, “See the local rule? You got to answer this.”

Every response I get back always has objections to it and that’s never been an issue. A lot of lawyers, you can work things out by a call and bigger stuff out until it becomes an issue. I had to file a motion to compel on one of these local rules and it came before the magistrate. This was several years back. The magistrate basically looked, we were having a hearing and going back and forth.

He was about to conclude and said, “I’m looking at this request. It is clear that the local rules require you to provide this information. You even cited the rule that, to me, it’s boring on sanctionable conduct by objecting and not responding. I’m not going to sanction you this time, but this is a very clear violation of the local rules.” The moral of the story for me has always been, know your local rules and your local-local rules because oftentimes, Federal judges will have their own standing orders that you got to pay attention to. The number two lesson for me there is if you do have a rule in favor, cite it.

Federal Tort Claims: Lawyers must always know their local rules. Federal judges will often have their own standing orders that you have to pay attention to.

That’s a great tip.

I love it. Tom, thank you so much for being with us. We’ve enjoyed hearing about your practice. That incredibly significant case in Sutherland Springs that you all worked on. As I said, we’re super pleased to have a trial lawyer on the show. We’ll do this more with some other folks, too.

Thank you for having me. I love reading your show even though I’m not an appellate lawyer. It’s always good to keep an ear to the ground on those types of issues. I appreciate you having me on board. Thank you.

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About Tom Jacob

Tom Jacob focuses his law practice on catastrophic personal injury and medical malpractice, with specific attention to lawsuits under the Federal Tort Claims Act (FTCA). Under the FTCA, his clients can hold the U.S. government accountable for personal injuries caused by agencies like the VA, the military branches, U.S. Postal Service, Department of Health and Human Services, and others.

He was a lead trial attorney in the landmark $230m verdict against the United States brought on behalf of victims in a mass shooting that took place in Sutherland Springs, TX.

Mr. Jacob graduated first in his class at Baylor Law School. While there, he served as Editor-in-Chief of the Baylor Law Review. He also won the “Top Gun” Competition, a five-day, single-elimination one-on-one trial competition. He has numerous other advocacy awards at Baylor, including induction into the Order of the Barristers, and multiple championship and finalist finishes at large national mock trial competitions (AAJ, Nat’l Trial Advocacy Competition, and Nat’l Ethics Trial Advocacy Competition).

After law school, he clerked on the Fifth Circuit Court of Appeals. Since then, he’s practice personal injury and medical malpractice on behalf of Plaintiffs. He’s presented to various organizations on these topics, including AAJ, Inns of Court, TTLA, and various state bar associations. He’s published in multiple areas, including most recently in the Texas Tech Law Review on medical malpractice.

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