motions when they wish to inspect Government documents. They could simply have asked for them and there would have been no objection whatsoever to their production. If possible, the contractor's counsel should establish direct contact with Government counsel as soon as the answer is filed, and together they should immediately initiate their own pretrial procedures, of course keeping the Commissioner to whom the case is assigned advised from time to time as to what they are doing and what progress they are making. Nothing will advance the progress of a contractor's case more rapidly than his attorney's taking the initiative and voluntarily setting in motion the accomplishment of the large amount of pretrial desk and office work that is a necessary prerequisite to an expeditious and orderly trial.

THE TRIAL

The Commissioner to whom the case is assigned will conduct the trial proceedings, and will make rulings on objections to the evidence offered, both oral and documentary. The general rules of evidence apply. The trial is conducted in much the same way as is one before a Federal District Court Judge without a jury.

54

Although witnesses ordinarily have a right to be heard in the counties in which they reside, where there are widely separated witnesses, piece-meal trials would frequently result. The problem of such trials is a serious one in a Court of national jurisdiction where witnesses in a single case often reside in various parts of the country. While, as a practical matter, more than one trial session is frequently necessary because of this situation, counsel are normally urged to make every reasonable effort to bring their witnesses together at one time and place so that the trial can be completed at one sitting. On occasion, a series of continuous sessions in different cities may be arranged. However, upon proper showing, the Court will order and subpoena witnesses to attend the trial notwithstanding the distance from their places of residence.

56

55

After having been through a time consuming and expensive administrative process, including, sometimes, a witness-type hearing before an agency appeal board, contractors understandably may wish to conduct as speedy, simple, and inexpensive a trial as possible. Where the contractor feels that he has made as good a record before the agency appeal board as he could make in Court, and that the Court proceeding would, therefore, simply be repetitive, he may wish to have the case considered by the Court only on the record made before the agency. If Government counsel is similarly content to rest on the agency record, the trial problem is, of course, substantially over. Obviously, real savings can be made by so proceeding. For one thing, there are no official reporters in the Court of Claims. Each party is obliged to employ his own reporter to transcribe the testimony offered in support of his case, including the cross-examination of his own witnesses by adversary counsel. Reporters' fees can and often do run into the hundreds of dollars, and in some cases where transcripts may total thousands of pages, even more.

On the other hand, if the contractor is dissatisfied with the record made before the agency, or feels that more extensive or different proof in support of his claim is advisable, he may so proceed. He is not restricted to the record made before the agency head or board, even in attempting to prove that the decision of such head or board was, in the words of the so-called "Wunderlich Act," ,"57 arbitrary, capricious, so grossly erroneous as to imply bad faith, or not supported by substantial evidence.58

REQUESTED FINDINGS OF FACT

Upon the completion of the taking of the evidence, the parties are permitted to submit to the Commission requests as to the findings he should make based on the transcript of testimony and the exhibits. The Commissioner's report containing his findings of the facts will normally be much more detailed than

4 28 U.S.C. 2505.

Rule 44(e).

56 See Haas, Two Boards of Contract Appeals-A Contract, 1 Government Contracts Review No. 9 (1957).

57 See footnote 16.

59 Fehlhaber Corp. v. United States. C. Cls.

June 5, 1957, 151 F. Supp. 817, cert. den., 355 U.S. 877: Volentine & Littleton v. United States, 136 C. Cls. 638 (1956). See Cuneo, Judicial Review Under the Wunderlich Act, 17 Fed. Bar J. (1957).

the usual findings of fact accompanying a District Court order or judgment." The requested findings submitted by the parties should be in the form that the Commissioner will make in his report to the Court. Accordingly, they should not be argumentative. Where there is a conflict in the testimony, and the Commissioner is urged to make an ultimate finding based on one side's version of the facts, the argument urging the Commissioner to make the finding should be separated from the requested finding itself. This can be done by memoranda to the Commissioner immediately following the respective requested findings, or appended to the document in separate memorandum form, or by way of footnotes.

Similarly, the requested findings should not quote the testimony. The findings should be ultimate conclusions drawn from the testimony, and not consist of the testimony itself. Each requested finding should be supported by citations to the transcript and references to the exhibit numbers, although the Commissioner's report itself will not recite or detail the evidence upon which it is based. Quotations from the testimony may, of course, be set forth in the argumentative, supporting memoranda.

The preparation of a good set of requested findings is often a time consuming and laborious process. Experienced practitioners agree, however, that frequently they are the key to a successful result. It does one little good to make an excellent trial record and then fail to capitalize on it by welding it together into a document that clearly shows what was proved and what the significance is of the evidence that counsel labored so hard to procure and introduce. Energetic and conscientious office work is as important to a successful result in a Court of Claims case as is good court room trial work.

60

In certain instances, the Commissioner may be directed by the Court to make a recommendation for conclusions of law as well as findings of fact. In such instances, counsel will also be obliged to submit with his requested findings a brief on the law. This practice is not as yet in wide use, but it is gradually being employed with greater frequency.

02

61

THE EXCEPTIONS AND BRIEF

When the Commissioner makes his report containing his findings of fact, the parties may take exceptions thereto. These exceptions may be included in the same document as the brief on the law, since the time for the filing of each coincides. Care should be taken to document fully each exception by appropriate references to the testimony and exhibits relied upon to support the exception. The Court has made plain that it will not consider general blanket exceptions without specific references to the parts of the record relied upon.

63

The brief should generally follow the same form as briefs filed in an appellate court. The same complaint is frequently heard in Court of Claims practice as in other courts-briefs are sometimes too long. The old problem of the too wordy brief is not one with which the Court of Claims is alone concerned. Experienced practitioners know it takes a longer time and more concentrated effort to write a good short brief. The Courts know this too. But worse than reflecting discredit upon counsel for doing an unworkmanlike job is the damage that can be done to the client's cause. As the Supreme Court of California remarked in a case as long ago as 1889:

"We are inclined to doubt the correctness of the ruling of the court below, on account of the extreme length of the brief of the learned counsel for respondent in its support. Knowing the abilities of counsel, and their accurate knowledge of the law, a brief of 85 pages, coming from them in support of a single ruling of the court below, casts great doubt upon such ruling. However, the learned counsel may not have had time to prepare a short brief, and for that reason have cast upon us the unnecessary labor of reading and extracting therefrom the

"It is not possible to lay down a rule of more than very general application as to when findings are too scanty and when they are too detailed." Ready-Mix Concrete Co., Ltd. v. United States, - C. Cls. -, January 15, 1958.

6028 U.S.C. 2503. Rules 45, 46.

Rule 45(b).

Rule 46(b) (c).

Schmoll v. United States, 105 C. Cls. 415, 416 (1946); Manufacturers' Casualty Insur ance Co. v. United States, 105 C. Cls. 342, 351 (1946). Where a finding "may be incorrect. [it] is more economically left to be called to our attention by the party who thinks it is incorrect. When he does so, he details for us the evidence relating to the point." Ready-Mir Concrete Co., Ltd. v. United States, C. Cls., January 15, 1958.

points made. If we overlook any of them, counsel will readily understand the

65

THE ORAL ARGUMENT

The Court convenes on the first Monday of every month (except July, August and September) to hear oral arguments in the cases calendared for argument at such monthly session. It sits for approximately one week for this purpose. Cases are heard by the five Judges sitting en banc. Normally each side is allowed 30 minutes.

There has been apparent a tendency by some lawyers to minimize the importance of the oral argument. They feel that the making of a good trial record and the submission of an adequate brief will assure thoughtful consideration of the case by the Court, and that especially in protracted contract litigation, an oral argument, so limited in time that the complicated facual and legal aspects cannot possibly be covered within the allotted time, is superfluous. Such a tendency has similarly become increasingly obvious on the part of some Court of Claims practitioners. The suggestion by claimants that their cases be submitted to the Court without oral argument, and simply on the record and briefs, is being made with increasing frequency.

However, the Bench has frequently warned practitioners to disabuse themselves of any notions they might have that the oral argument is of decreasing importance in modern practice. Judges have emphasized again and again that the oral argument not only serves a most important purpose, but in many cases may well be the decisive factor in assisting the Court to make up its mind. In this respect, the Court of Claims is no different. Its Judges have left no doubt whatsoever as to the great importance they attach to the oral argument. In informal talks before Bar groups, they have frequently so stated. Contractors and their attorneys would be well advised indeed not to neglect this important phase of the proceeding.

It is recognized that Court of Claims practitioners sometimes face problems in this respect which are somewhat different from those in ordinary litigation. The Court sits only in Washington to hear oral argument. An attorney practicing in a distant part of the country may be faced with peculiar problems of time and expense in travelling to Washington for 30 minutes of oral argument. The contractor or his attorney may feel that the size of the claim may not warrant the investment. In such cases, the question then arises as to the attitude of the Court and the Department of Justice toward a request by the claimant that the case be submitted without oral argument.

If a truly important principle is involved which may affect many other cases, or in which many Government agencies are interested, and it is essential, in the interests of proper Government administration, that a Court ruling be obtained, or if the Government's position in the individual case manifestly calls for presentation by way of oral argument, the Government may ask to argue the case fully despite the contractor's desire to submit. If a party wishes to submit, that is, of course, wholly his decision, but obviously he should not be in a position of absolute control over the adversary's presentation of his case to the Court. Neither litigant should be in a position to compel the other to submit without oral argument.

Nevertheless, seldom does the Government seek oral argument where the contractor requests that the case be submitted. It is, for one thing, anxious to avoid an appearance of one-sidedness or unfairness, and every effort is made to accommodate requests for submission. Similarly, the Court has not been insisting upon oral argument where a party desires to submit, although it has the power to do so.66

One aspect of the submission procedure should, however, be brought to the attention of contractors. Generally, as a matter of informal practice, the Court desires, even when the case is to be submitted without oral argument, that Government counsel be present and prepared to make a short statement of approximately five minutes. This statement is one that is restricted to the general nature of the case and the respective contentions of the parties. This enables the Court to ask any clarifying questions, either as a result of the Government attorney's explanatory statement or of the Court's previously having read the

King v. Gildersleeve, 79 Cal. 504, 21 Pac. 961, 962 (1889).

65 Rule 47 (c).

e Rule 47 (d).

briefs. No argument in the adversary sense is expected by the Court in such statement, and Government counsel is careful not to make any such argument. The case is still considered by both the Court and the Government as having been submitted without oral argument despite the making of the explanatory statement by Government counsel.

COLLECTION OF THE JUDGMENT

Decisions are normally announced and written opinions handed down on the Wednesday following the first Monday of every month (except during August and September). Should the Court render a judgment in his favor which has become final, the contractor should not make the frequent mistake of sitting back and waiting for a Treasury check to arrive in due course. Affirmative action on his part is necessary to secure payment. He must obtain from the Clerk of the Court a certified transcript of the judgment and file it with the appropriate Government officer. Formerly, all judgments of the Court were, after the filing of a certified transcript of the judgment with the Treasury Department, periodically included in deficiency appropriation bills passed by the Congress. Thus, the contractor was obliged to wait until a bill containing his judgment was passed by both Houses of Congress and signed by the President. If Congress was not in session when the judgment was handed down, lengthy waits were often necessary. The situation has been partially alleviated. Under recent legislation," the General Accounting Office may now, upon the claimant's filing with it a certified transcript of the judgment obtained from the Clerk of the Court, pay final judgments which do not exceed $100,000. No special appropriations are necessary. However, for judgments in excess of $100,000, the former situation still exists." Appropriation bills-and long waits-may still be the contractor's lot. And no interest accrues on the judgment while the contractor is waiting."

REVIEW OF COURT OF CLAIMS DECISIONS

Contractors have no appeal as a matter of right from final judgments or orders of the Court of Claims. The only review possible is by the Supreme Court on a petition for a writ of certiorari."

SETTLEMENT

Despite the fact that approximately 25% of all the contract cases brought in the Court of Claims are currently being terminated by settlement, the question is still frequently asked by claimants' attorneys whether it is even possible to settle their cases. It is true that at one time, settlement was infrequent. Cases invariably went the full litigation route. Although the Attorney General has never doubted his general power to settle a suit," the authority to represent and defend the Government in litigation " being considered as necessarily embracing the power to compromise, nevertheless there were some who doubted such authority insofar as Court of Claims suits are concerned because, for one reason, of the various statutory provisions detailing how the Court itself should dispose of litigation instituted therein. However, in recent years no responsible official has raised any question concerning the Attorney General's power to compromise a Court of Claims suit, and a sensible and practical approach has resulted in many settlements. Practitioners should not hesitate to broach the question of a possible compromise of their cases.

In only one respect is the Attorney General's power to compromise a Court of Claims suit qualified. When a settlement is agreed upon, it will normally be effectuated through the medium of a judgment entered by the Court pursuant to a stipulation of settlement filed by the parties. The stipulation does not merely state that the parties have agreed to settle and that the Court may, therefore, enter judgment in the agreed amount. As noted, the Court enters judgments

Sec. 1302, Public Law 814, 84th Cong., approved July 27, 1956 (70 Stat. 694). 28 U.S.C. 2517-2518.

Except only where the Government carries the case to the Supreme Court and the Court of Claims judgment is affirmed. 28 U.S.C. 2516.

To 28 U.S.C. 1255.

38 Op. Att'y.. Gen'l. 98 (1934).

12 Executive Order No. 6166, June 10, 1933, Section 5, vested the Department of Justice with the authority generally to defend the Government in litigation.

54722 0-60-9

based on findings of fact and conclusions of law. Normally, the factfindings are made by the Commissioner to whom the case is assigned, and, in the absence of exceptions thereto, are invariably adopted by the Court." Of course, the Court makes its own conclusions of law.

та

When a case is settled, there are no findings of fact made in the normal course by the Commissioner. Therefore, something in the nature of sufficient facts should be given the Court upon which to enable it to base a judgment, if for no other reason than to assure the Court that it has jurisdiction over the dispute and parties and that the judgment will be, therefore, a valid one. Even in the case of a judgment entered upon a stipulation of settlement, the Court will, before it enters the judgment, refer the stipulation to the Commissioner who will then submit to the Court a "Memorandum Report," reciting the basic jurisdictional aspects as set forth in the stipulation and recommending that the Court enter the judgment in accordance with the agreement of the parties. Thus, under this procedure the Court has the power to reject the stipulation and to refuse to enter the judgment agreed to by the parties. Indeed, primarily to put claimants on notice that the Court has such power, the Government insists on inserting in all settlement stipulations a provision to the effect that the Court may enter judgment upon the stipulation in the agreed amount, but that if the Court rejects the stipulation, it shall then be deemed to be null and void.

In the normal situation, a contractor need have little fear that the Court will exercise its reserved power to reject a stipulated settlement. The Court's jurisdiction over contract disputes is plain, and it has been quite content to accept the parties' agreement as to the amount which they feel constitutes a fair disposition of the matter. The only instance in recent years in which the Court has rejected a stipulation was in the unusual situation where, after the filing of the settlement stipulation with the Court, but before it actually entered judgment thereon, the Court itself, in another pending case, reversed the very decision upon which the settlement had been based, the settlement stipulation specifically reciting that it was in fact based upon such decision. Although the Department of Justice felt that, because it had entered into the settlement in good faith on the basis of the law as it stood when the settlement was negotiated, it would not attempt to withdraw from its settlement agreement, nevertheless the Court on its own motion rejected the stipulation and refused to enter a judgment, which, based on its new pronouncement, represented erroneous law."

While the judgment based on the settlement stipulation is treated like any other judgment of the Court so far as validity and payment is concerned, nevertheless it does not have the res judicata quality of an ordinary judgment rendered pursuant to an opinion handed down in a case that has gone through the full litigation route. So, where there are a series of identical claims against the Government, and, pursuant to settlement stipulations, judgments are rendered on some, the Government may refuse to settle the others. The previous compromise judgments do not result in a res judicata or collateral estoppel situation.

73 44

the commissioner of this court, who heard the evidence and observed the demeanor of the witnesses, is made the judge of questions of fact and his findings are presumed to be correct." Meyers v. United States, 136 C. Cls. 303, 304; 142 F. Supp. 365 (1956), cert. den. 352 U.S. 989.

74 Albin, et al. v. United States, 136 C. Cls. 801-2 (1956). The settlement was based on the Court's decision in Sanders v. United States, 120 C. Cls. 501 (1951). In Hulse v. United States, 133 C. Cls. 848, 137 F. Supp. 745 (1956), the Court reversed the part of the Sanders case upon which the settlement was based. See Federal Export Corp. v. United States, 88 C. Cls. 60 (1938), where the Government was permitted to withdraw from a stipulation entered into on the basis of a decision that was later reversed. The Court said:

"The first question to be determined is whether this court had a right to set aside the stipulation. It is contended by plaintiff that the rule is that a mistake of law will not justify the setting aside of a stipulation. Without determining whether this is the rule in other courts and in cases where the Government is not the defendant, it is not an invariable rule in this court. We think the court has power to prevent an injustice being done the Government when a stipulation has been inadvertently entered into by one of its attorneys even though the stipulation involves a matter of law. This court in the early case of Giddings v. United States, 29 C. Cls. 12, 15, held that where a case was submitted on stipulation either party should be allowed to withdraw it at any time before a decision is announced and in the case of Jones and Laughlins v. United States, 42 C. Cls. 178, it was held in substance that this court had the authority to set aside a stipulation involving a mistake of law in order to protect the Government and that when a claimant seeks to avail himself of a stipulation in writing signed by a representative of the Government he takes it subject to a motion of defendant's counsel to set the agreement aside. *" (pp. 83-84).

7 Abarr, et al. v. United States, C. Cls.