Case Closed--by a Creative Judge

The case was headed for trial this week, and both sides knew the jury would come back with a six-figure settlement for the three grown children of 77-year-old Ted Franks.

But would it be high six figures or low six figures? Might it go as high as a million dollars? How much would the city of Huntington Beach pay for admitting liability in the 1996 police killing of the unarmed Franks, shot around 4:30 a.m. by an officer who mistook him for a burglar?

The last figure on the table from the Franks children, all in their 50s, was $1.2 million. The city’s counteroffer was $350,000. But because neither side could be sure how a jury would decide, especially when considering the jury might not have learned the details of Franks’ death, both sides were willing to roll the dice in court.

Until, that is, Orange County Superior Court Judge Francisco F. Firmat made an unusual decision.

Firmat ordered the Huntington Beach City Council to meet with him. For a government body accustomed to making decisions based on briefings from department heads, Firmat had something else in mind.

And so, a four-member quorum came to Firmat’s chambers last week, and the 48-year-old judge gave the three Franks children--two sons and a daughter--about 10 to 15 minutes each to explain to council members what their father had meant to them.

When the session was over and when the tears from some in the room had been dried, the council and the children agreed on a $500,000 settlement.

Attorneys for the Franks children praise the judge. The city’s attorneys, while not criticizing Firmat, are noticeably more restrained in their comments.

We’ll never know what a jury would have done, but council member Peter M. Green said the presentation persuaded him to up the ante. “Some people were close to tears,” he said of the meeting. “I was dry-eyed throughout, feeling it was a performance coached by attorneys. But I could see how it might have swayed a jury.”

Green thinks the $350,000 figure was fair, based on the age of the children and their financial status. Had Franks [who was a widower] left a wife and younger children, Green said, he would have been much more charitable.

Richard Cohn, who represented two of the Franks children, said settlement talks were going nowhere. And because the range in such cases could be from as low as $150,000 to around $1 million, both sides had incentive to stay the course.

What Firmat did, Cohn said, was to inject the “human” side of the case into the council’s thinking. And rather than let the city’s attorneys make that presentation to the council, as normally happens, Firmat, in effect, went over their heads.

Maybe that’s why City Attorney Gail Hutton and private attorney Neal Moore, who represented the city, were less than enthusiastic when describing Firmat’s plan. Neither would criticize it, but neither did they take advantage of my invitation to laud it.

It’s the job of city attorneys to evaluate cases like these, Hutton says, and advise councils on whether to fight a case in court or, as in this case, establish a settlement figure. “I think it put a lot of pressure on the council to personally view the pain and have the various family members interrogated,” she says of Firmat’s order.

When I asked if she criticized it, she said only that Firmat is the only judge in her 25 years as a practicing attorney who has issued such an order.

Moore is equally circumspect, saying that “in theory” there’s nothing wrong with Firmat’s plan.

My guess is that Hutton and Moore are miffed that Firmat went over their heads in going to the council, but it seems to me that the judge also may have saved the city some money.

“I’ve been on the bench for almost 13 years,” Firmat says, “and this is only the third time I’ve done it. This was a situation where I felt both sides weren’t getting close enough to settle, because the City Council really makes the decision and I just didn’t think it had a correct evaluation of the case. Some cases are hard to evaluate from a distance, and I felt they needed a closer-eye view of the case.”

I asked Firmat if he had taken sides in the case.

“When I heard the facts of the case, I got the sense it was the kind that would have jurors sobbing in the courtroom,” he said. “When jurors are sobbing in court, it adds an element to these cases that makes it a case they [the parties] should settle.”

I asked if he thought he did the city a favor. “This was a very, very dangerous case for the city,” he said. “I was trying to get it settled.”

The inherent emotion in the case might have skewed a verdict, he said.

“If this case is tried 10 times, we would get 10 different results from 10 separate juries,” he said. “We had a result that both sides were satisfied enough with to sign on the dotted line. I think we got better justice than if we put it in front of a jury.”

Doesn’t that fly in the face of the jury system being best? I asked. He conceded it did but noted that in some cases, he thinks he’s done a better job as judge if he helps settle a case.

“Both sides get better justice out of a case, and it’s more cost-effective for taxpayers,” Firmat said. “I enjoy the peacemaking part of the settlement process, so I became involved.”

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Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by calling (714) 966-7821 or by writing to him at the Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or by e-mail to dana.parsons@latimes.com