I never knew what to say. Sometimes just “Sorry, so sorry.” And then I’d wait, forever it seemed, for a response. Other times I couldn’t shut up: “I can’t imagine. I don’t know how you get through the day. It must be so hard. I feel so bad. . . .” Eventually, I gave up trying to express sorrow, compassion, when I first met the families of those killed in disasters—the broken and lost widow, the distant mother clutching the photo of her only son, the confused daughter who, from habit, still picks up the phone to call her mom. For words provide no comfort, have no purpose.
All death is tragic, but never the same. My mother’s at 87 was sad, of course, but not as unbearable as my father’s at 56, which robbed him of many good and happy years. But the sudden cruelty of death in a mass disaster is different, whether in the terrorist attacks on 9/11 or when American Air 587 fell onto neat houses in Belle Harbor, Queens, killing all 260 aboard and five others, safe, they believed, in their familiar rooms.
These, and so many more, I cannot forget, for their faces appear, randomly, oddly, when I’m walking to the store, doing the crossword, or in the dark of the night. They’re there, real, decades after I handed them the check and told them to call if they ever needed assistance. These memories, scars really, cannot be erased, even by a jaded, callous lawyer like myself.
Maybe it’s the constant reminders—my neighborhood Brooklyn streets bear the names of Moira Smith, Joseph John Hasson III, Mark D. Hindy, Patrick Sullivan, Constantine (Gus) Economos, and so many others lost on 9/11. Or it could be social media where photos abound of brave firefighters, Cantor Fitzgerald traders gone so long and so young. Maybe it’s my personal connection—from Pan Am Flight 103, December 21, 1988, when a lawyer buddy lost a brother; to 9/11, when I lost a dozen or so friends, including my 23-year-old cousin; to American Air Flight 587, November 12, 2001, which killed my daughter’s softball coach as well as the mother and brother of her classmates. And I’m still haunted by the keening that pierced that terrible night’s silence from the family in the house behind ours, mourning their lovely daughter who worked on the 107th floor of Tower One.
In all these tragedies, I was desperate to erase reality, have the lost walk smiling into the living room, but we all know that miracles never happen in courtrooms. All I, or any lawyer, could do was to obtain money. And try to force those responsible to change training and procedures so others would not lose the joy and laughter of life. Small comfort.
So I learned to litigate aggressively and patiently, as part of the plaintiffs’ steering committee, formed, usually, with members of various firms, trying to work together but too often battling over strategy, tactics, and, sadly, publicity. The Judicial Panel on Multidistrict Litigation (MDL) consolidated all cases before one federal judge, so I litigated in Cleveland; Miami; New York; Buffalo; Lexington, Kentucky—all different, yet the same.
Do the research. When there are scores of plaintiffs and multiple defendants from not only different states but different countries, the law applied, both liability and damages, is paramount. Cases will be filed in various state and federal jurisdictions. Plaintiffs generally prefer state court with its generous juries and favorable judges. Defendants will remove to federal court, before more measured judges and juries, and then move the MDL to consolidate all lawsuits before one judge in one federal jurisdiction. Be prepared to argue before the MDL; do not underestimate the value of a hard-working judge in a friendly venue.
You must master not only the liability and damages law of each jurisdiction but also the conflict-of-law rules. Fact patterns in disasters often mirror those tortuous and convoluted law school exams that caused nightmares. How will the court determine which law applies? Will foreign law apply? Will domicile law control damages? Who can recover? The unmarried partner? What are the elements of damages? Do death actions allow grief and anguish?
On liability: Will it be the law of place of accident? Where the negligence occurred? Defendant’s place of incorporation, principal place of business, where the product was designed, manufactured, maintained? Is there a superseding federal statute such as the Death on the High Seas Act, the Federal Tort Claims Act, or some other arcane law?
Determine which law is most favorable, and strategize to have it applied. Not simple, especially when disasters often involve hazardous materials as in the train derailment in East Palestine, Ohio. Proving which toxin caused injury is most problematic. When to settle is also a factor—we learned from the World Trade Center that the toxins in the air, slowly but certainly, caused cancers and other diseases to thousands of rescue workers and residents. For example, 343 New York City Fire Department members died on 9/11, but since then, an additional 200 deaths have been caused by toxins. This despite the government’s assurance, at the time, that “the air is safe to breathe.”
Long ago, liability was contested in aviation disasters. Now, as in much of tort practice, the real issue is damages. Know the intricacies of damages law. For example, even though New York juries are generally generous, the state’s death law allows only predeath pain and suffering and economic loss. Many of the 270 killed in 1988 on Pan Am Flight 103, blown up by terrorists over Lockerbie, Scotland, were New York college students returning home for Christmas. Because death was near-instantaneous, the defendants argued that for those unmarried, without dependents, the value “is what you would pay someone to mow your lawn on weekends,” as one defense lawyer stated callously in open court. In those cases, the plaintiffs had to establish a connection to a law that allowed parents to recover for grief and other noneconomic damages.
What effect will a victim not legally a resident of the United States have on the recovery? If the victim is a resident of another country, and the judge applies domicile law for damages, how will damages be calculated? I represented a 19-year-old Colombian woman who was seriously injured when, on January 25, 1990, Avianca Flight 052 from Bogota to New York inexplicably ran out of fuel and crashed on Long Island. My client, thought dead, was taken to the morgue, but after hearing her moan, staff realized she was alive.
Even after multiple surgeries and extensive therapy, she was unable to work and would need a lifetime of medical treatment and therapy. Colombian law allowed recovery for this, but the issue was which standard of living would be applied—American or Colombian? The average wage and cost of medical care in Colombia were a fraction of what they were in the United States. Defense argued that, in Colombia, her future economic loss of earnings and for medical care was less than $200,000. If she remained in New York, the figure would have been millions. The uncertainty of how Colombian law would be calculated led to settlement after trial.
Do the work. If you become involved in disaster litigation, be careful—you could get run over if you’re between a TV camera and one of the more aggressive plaintiff lawyers. The first court conference is always a hoot with nearly every lawyer jumping up to say nothing, hoping the media take notice. When the real work begins, these frauds are long gone, a blessing since they provide little value and waste precious time.
Learn to get along with your competitors on the plaintiffs’ steering committee who have differing styles and strategy. Not easy, especially with all those gigantic egos (not that mine was ever small). Eventually, the extensive document review, multiple depositions, and motions will be divided without bloodshed. The battle for supremacy will begin anew as trial nears. Don’t worry, though, because, like almost everything else in tort law, trial is a mere memory.
Taking 20 depositions or writing a successful choice-of-law motion will never make you a media darling. Fortunately, I was taught life is unfair, so I never minded doing the grunt work, at least not too much. Have pride in accomplishment, in being a professional, in working hard. Recall what George Gervin, former National Basketball Association all-star, said about those NBA players who wanted more rest between games: “Rest? It’s your job, man.”
Do the right thing. Just once, I want to be stopped on the street and asked: “Aren’t you that lawyer who . . . ?” The allure of celebrity tempts all, causing even decent attorneys to consider only themselves, their career. Client, what client?
Tailor your representation to your client’s needs, not your own. Realize that your client’s goals will change over the years. Emotion is the initial reaction. Be patient and understanding as your client vents with passionate and ugly words. Others withdraw, never leaving the house, refusing therapy, avoiding friends. As part psychologist, don’t judge; don’t pander. Accept that everyone grieves differently. And don’t believe you would mourn appropriately. You never know.
Be patient. Explain the process, the limitations of our legal system, why it takes forever. Repeat this constantly. Show concern by meeting in person regularly. Appreciate the frustration and anger. Those who demand trial may one day beg for settlement: “My family can’t go through a trial. It would tear us up. Ken, you know it was never about the money.” Others, who never wanted confrontation, now demand trial. Your legal skills are why they hired you, but your empathy and concern are what they will remember.
Dealing with such cases is challenging, both legally and emotionally. My clients taught me more—strength, resilience, faith—than I ever gave them. Yet, I take pride in having assisted them in the worst time of their lives. I hope I made a difference.
