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Like the rest of the country, lawyers are just beginning to grapple with the effects of the terror attacks on the World Trade Center and Pentagon. Meanwhile, the victims, from financial executives to army officers to dishwashers at the Windows on the World restaurant, have left families who will need to feed children and pay mortgages. Lawyers predict that the disaster could result in incredibly complex litigation, involving insurance and liability claims, possibly targeting defendants from the terrorists to the airlines whose planes were crashed. At press time, the U.S. House of Representatives was thrashing out a bill to offer a streamlined compensation system for victims of the disaster, while helping to guarantee that the litigation does not spin out of control. The day after the attacks, American Airlines and United Airlines were on Capitol Hill, asking for financial relief, including limits on liability. The nature of the limits was still under discussion on the afternoon of Sept. 21. Leo V. Boyle, president of the Association of Trial Lawyers of America (ATLA) quickly reacted to the Sept. 11 attacks by calling for plaintiffs’ lawyers to refrain from filing lawsuits, for the time being at least. The moratorium appears to have held. Several plaintiffs’ lawyers report calls from victims’ families, and some have already signed retainer agreements. But none appear to have filed lawsuits yet. Boyle reports that ATLA has gotten at least 500 e-mails, from members and from the public, supporting the move. Victor Schwartz, a partner with the Washington, D.C., office of Kansas City, Mo.’s Shook, Hardy & Bacon and general counsel to the American Tort Reform Association, dismissed ATLA’s lawsuit moratorium, saying it amounted to little more than is already required under federal law. The Aviation Disaster Family Assistance Act, passed in 1996 after the crash of TWA Flight 800, bans lawyers and insurers from contacting families of victims within 45 days of a crash. But it doesn’t prohibit lawyers from representing clients who seek them out, as some victims’ families in the recent attack have done, according to lawyers. Schwartz supports a legislative fix that would resolve the liability issues outside of court. “If you just let the tort system run wild, you’ll end up with bankrupt airlines and nobody will recover,” he says. Boyle says that ATLA could support a program to compensate victims outside the courts, if it provides for full compensation, immediately, of all victims, whether on the airliners or on the ground. CENTRAL QUESTION A question at the center of the litigation is whether the airlines must compensate the thousands killed and injured on the ground, a possibility they say could put them out of business. The answer, lawyers say, turns on whether it was foreseeable that any negligence on the part of an airline could result in the mayhem at the World Trade Center and the Pentagon. “With that one issue of law, you open up the carriers to incredible liability,” says David Bernick of Chicago’s Kirkland & Ellis. Bernick says the airlines were “instrumentalities” — not participants — in the terrorists’ unprecedented crime. With the airlines’ survival threatened, a judge could feel tremendous pressure to decide that the deaths and injuries in the World Trade Center and Pentagon were not foreseeable. “What judge wants to say, yeah, we’re going to impose liability on this company as if it helped bring it about?” Bernick says. “You look at the terrorists who consciously and knowingly brought about this tragedy. Isn’t the law kind of an ass that says, ‘Gee, we’re going to find some way to make these other people responsible?’ “ Bernick has defended clients in high-profile complex litigation, including tobacco lawsuits. His firm has represented United Airlines on other matters. UNCERTAINTY AS AN ALLY Uncertainty on the foreseeability question may make the congressional scheme attractive to plaintiffs as well as the airlines. The extreme violence of the attacks may make it difficult to convince a judge it could have been predicted. Lee Kreindler, a New York lawyer who has been litigating air-crash cases for nearly half a century, points to the 1988 downing of Pan Am 103 over Lockerbie, Scotland, as a crash for which an airline ended up paying for terrorist acts. He points to the Lockerbie lawsuits in trying to imagine the form the new litigation might take. In that case, Pan Am, which is no longer in business, was forced to pay victims’ families who alleged airline security negligently permitted a bomb to be placed on the plane. Many of the families also sued Libya, a case that is pending. Kreindler says he supports the lawsuit moratorium. “We’re not about to start any cases right away,” he says. “It’s unseemly. The bodies have not even been recovered, much less identified and buried.” Kreindler says his firm has been contacted by some of the families and four have signed retainer agreements. He says his office will start collecting evidence — of the victims’ earnings, for example — to prepare for claims. Of the attacks, he says, “To think of four coordinated suicide attempts, using aircraft full of passengers as the vehicles is wild.” Indeed, just two weeks before the attacks, he wrote an article pointing to improved airport security since Lockerbie and predicting that “terrorist incidents will be fewer and will be far less likely to succeed than before Lockerbie.” Speaking of suits that could be filed over the World Trade Center and Pentagon attacks, he says, “My crystal ball is … pretty cloudy. But my experience tells me the people are going to recover damages.” Like Kreindler, most lawyers said they were unable to talk with anycertainty about how this unprecedented disaster would be litigated, particularly while many facts are not yet known. But they identified several potential targets of claims. In addition to the airlines, these could include: � The Port Authority of New York and New Jersey, owner of the World Trade Center, and the development company that recently leased the complex. While improvements in evacuation procedures, the result of the 1993 bombing, were credited with saving many lives, the question is whether more people could have been evacuated. According to press reports, a public address announcement discouraged workers in the south tower from evacuating after the north tower had been hit. Many ignored the announcement and left, but others who heeded the announcement may have died. � Architects and engineers of the complex. They could conceivably be sued if the plaintiffs’ lawyers determine the towers should have withstood the impact of the airlines. � Private security companies and airports. In the aftermath of the attacks, the press has been full of reports documenting lax security at American airports, including Boston’s Logan Airport, where two of the doomed flights originated. � The federal government. Federal agencies may have failed to enforce safety regulations. Sovereign immunity may limit the ability of plaintiffs to sue the government, however. � Boeing Co. The manufacturers of the airliners has been mentioned as a possible target of lawsuits. Safety experts have suggested that sturdier cockpit doors might have prevented the hijackers from taking control of the airliners. � Osama bin Laden; Al Quaeda, which President Bush has accused; and any foreign governments that may have aided in the attacks. Plaintiffs may sue under federal laws targeting terrorists and the countries that support them. Bin Laden has already been sued at least twice in federal court, based on alleged connections to the bombing of U.S. embassies in Africa and on an earlier car bombing in Saudi Arabia. One issue the congressional legislation would likely address is the forum for determining claims. Plaintiffs’ lawyers typically are able to choose among several state and federal courts in mass tort litigation, depending on the homes of the plaintiffs, the defendants and the location of the disaster, among other considerations. And when the threat of bankruptcy is in the air, as in recent lawsuits against Bridgestone/Firestone Inc., plaintiffs’ lawyers will try to beat the clock by filing in courts where they can expect a quick trial date. STATE COURTS As a result, while federal lawsuits may be coordinated in a single court, cases may also be litigated in many different state courts. Sometimes state judges will allow the federal cases to set the pace. But there’s nothing requiring things to work that way, and they often don’t. “The more courts are involved, the more difficult coordination becomes, and coordination is the Achilles’ heel of mass torts,” Bernick says. Another goal of a congressional fix would be to speed compensation to victims’ families. After eight years, litigation against the Port Authority over the 1993 World Trade Center bombing is still pending in state court in Manhattan. Blair Fensterstock, the lead plaintiffs’ lawyer, says the parties are waiting for a trial date, which is unlikely this year. “I would think there would have to be a special tribunal set up for this,” Fensterstock says. “This is not something that the judiciary should allow to clog up the courts.” After the 1993 bombing, U.S. District Judge Jack B. Weinstein wrote that the litigation arising out of that incident could be coordinated between a single federal and a single state court judge. According to Weinstein, a senior-status judge in Brooklyn, N.Y., who is an expert in complex tort litigation, the need for streamlining applies with added force in the latest set of terror-bombing suits. “It’s a much more sensible way of dealing with a situation like this,” he says.

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