HMA: What is the status of the Sept. 11 litigation?
Let’s be certain we are talking about the same thing when we talk about Sept. 11 litigation. There are really two areas of litigation. The first is for the victims that received bodily injury or property damage on 9/11 and are seeking compensation from the airlines, the security companies, Boeing, etc. under general negligence or product liability theories. Thousands of people were injured or damaged that day. The vast majority of them were eligible, treated fairly and got compensated through the federal fund that was set up. But the way the fund worked, it couldn’t be fair to everybody. People had the right to opt out. So there are 70-75 individuals or family members of individuals who either died on the planes, or were severely injured on the ground, who have filed suit against the airlines or the security companies for compensation and those cases are proceeding through the discovery process in a rather slow fashion. Now that the federal fund is concluded, they should pick up. Our firm represents about 51 of those individuals.
Separate and distinct from that litigation, there are a couple of class action lawsuits. We have filed a consolidated action on behalf of 5,000-6,000 individuals against foreign entities and banks alleging they were supporters and financiers of terrorist activity and were negligent in the way they handled things or violated the Patriots Act. That litigation is proceeding in New York. Recently, the court issued an order that granted sovereign immunity to certain of the defendants and made some conclusions of law. Now the decision is being reviewed as to whether or not it will be appealed.
HMA: Any further comments you want to make about those suits?
I just wish the court would move the victims’ immediate compensation suits along a lot quicker because those people need to have this put behind them.
HMA: When we spoke to Mr. Feinberg, the experience of working with the 9/11 victims had a great personal effect on him. Have you had the same experience?
Yes and I have great respect for what Ken Feinberg and his group did. They walked into a very emotionally unbalanced situation. No one had ever tried to do a fund like this before. He was given a tremendous task to try to pull it together and I think they did a good job with what they had to work with. He did a great job making the fund work for as many people as he did However, the way the statute was worded, it was unfair to certain classes of people. The family members had the opportunity to listen to some of the (cockpit recorder) tapes and they describe to you what they heard on those tapes and what it’s done to them emotionally. It’s just unbelievable. I have reviewed the personal files to try to evaluate damages for about 45 of the individuals who died on the airplanes. I read the eulogies and talked to their families. It’s tear-jerking. It’s awful. And these people can’t get closure with this part of their life. We need to get them closure. You hear what they say and then you read the discovery documents that we’ve received in our litigation involving the financiers of terrorists. We have a training manual for Al-Qaeda. One of the things it talks about is the need to strike quickly, slit the throats to have as much blood, draw as much panic, create as much fear as possible, in order to get control of the situation. That was their goal.
The family members who have listened to the tapes will tell you that’s exactly what happened. These people were in the air for 23 to 45 minutes, knowing this was a hijack and a suicide mission. And you tell me how to evaluate that emotional pain and suffering. We call it the Time of Terror for each one of the individuals.
HMA: With regard to Sept. 11, can you give us some insight into the job your firm has done investigating the terrorist network?
In order to put information together, we’ve reached out and have been very well received in many foreign countries. We’ve worked with the Spanish, German, Swiss governments and others to try to piece together information. We’ve created a database that allows us to input all the information from the various sources and make it “talk” to each other. So what was learned from the German prosecution and what was learned from the Swiss investigation can now be meshed together. We had our own team of investigators, many of whom had former government training. They spent two years in foreign countries searching for information — talking to war lords, etc., and we’ve gathered quite a bit of history.
HMA: We’d like to ask some questions now about your philosophy on ADR. What factors do you typically use to decide whether or not to choose mediation or arbitration?
I’m a strong believer in trying to reach resolution without having the jury having to make the decision. So if I have an adversary that has dealt with me fairly, then that’s the kind of person with whom I can also mediate. We have a mutual problem and I know I need to solve your problem and you need to solve my problem. Then that gives rise to a good situation for mediation. If you’ve got a situation where both sides are in denial that the other party exists or has any rights, then that’s probably not going to lend itself to alternative dispute resolution.
HMA: As a member of the steering committee of these trust funds, when you’re setting up ADR systems, what do you look for?
The ones that I’ve worked with the closest are the plans coming out of bankruptcy. There you’ve already taken the case out of the tort system and you’ve turned it into an alternative dispute resolution system already. So then what you’re looking for is to efficiently operate that system. There’s no choice of “do we litigate?” or “do we negotiate?” because negotiation is what the plan provides for. So then the question is “do we provide one-on-one mediation or binding arbitration?” What we try to do with the trust is just set up a fair process that will work as quickly as possible, and try to maintain the efficiency of that process.
HMA: What personal negotiation skills do you use to actuate a settlement?
I guess you learn by the seat of your pants. A lot of people ask me what tips I would give someone related to negotiation. There are four or five things I try to keep in mind.
1. You have to be a good listener because you’ve got to understand what the other side is saying and not saying and you’ve got to understand what their problem is. Don’t lock yourself into one negotiation technique. Use everything that you know. You don’t know which one will best serve you in any given negotiation. And when I go into a negotiation meeting, I try to be sure that when I come out, I come out with something. Sometimes it may be just another meeting, but I come out with something.
2. You’ve got to be prepared. Don’t go to a negotiation and then try to figure out what you want. When you go, know where you want to go. Have a plan.
3. I also believe when you go into a negotiation, you do it in a professional way. You go into it with humility to the other side but you don’t show weakness.
4. I think it’s very important to keep track of what you agree to in a negotiation because the person with the best notes most often ends up with the first draft of the agreement which generally guides the resolution.
HMA: You’ve handled a number of important cases. Which have been the most important in terms of impact on your career and impact on society?
At this point of my career, I think both of those would be answered the same — the tobacco case involving the states’ attorneys general and the tobacco companies. That’s the largest settlement that I’m aware of in history, and probably the most complex in that you had to get the chief law enforcement agent of every state to agree with some of the largest corporations, with everyone looking over their shoulder.
HMA: That probably answers the question as to what was your most difficult case.
(Laughter) Same answer.
HMA: What about on a personal level? What do you enjoy about your career?
In the early part of my practice, when I was doing a lot of litigation work and just tried cases, I enjoyed getting the chance to talk to a jury and getting them to decide in your favor. Not any specific case, just generally. I just thoroughly enjoyed trial work.
HMA: Do you get to do much trial work any more?
Not lately, but I’m hoping to get back to it.
In the next issue of the Henning Herald, we will discuss the proposed congressional asbestos legislation with attorneys on both sides of the asbestos issue, including Mr. Rice and a special master.
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