9/11 Holdouts: An Absolute Right to a Public Trial

I read, with great interest, a September 10, 2010 article in the New York Times. The article speaks of the "last holdout", yet to resolve their case arising from the September 11, 2001 World Trade Center attacks on America.

The lone "holdout" is the family of Mark Bavis, a passenger on United Airlines Flight 175, the second plane to strike the World Trade Center. The family filed suit back in 2002; they refused to be part of the "BP like" fund (administered by the same Kenneth Feinberg who is presiding over the BP fund), they have refused to settle the litigation, like every other claimant who filed a lawsuit has. Why? Because they want a public trial and a public airing of United’s miscues, gross negligence, inadequate training, security failures, flawed and inadequate cockpit doors and, most of all, the failure to beef up all of these areas despite government warnings about imminent terrorists threats.

The family is represented by InjuryBoard member Motley Rice. In an atmosphere where trial lawyers are often accused of being "greedy", where they are accused of "selling out", settling cases in their own interests rather than listening to their clients, here is a lawfirm that has pursued litigation and carried that litigation for eight long years, at significant personal expense, without making a dime. Why? Because their client made it clear to them that the pursuit of this case was about a public trial, not about quietly settling the case. And, in personal injury litigation, it is often forgotten by some, even by some lawyers, that the client is the ‘boss’; the attorney is the ’employee’. Motley Rice has not forgotten; the firm is a shining example of standing up, at its own expense, and doing what its client thinks is the right thing to do, even though doing so comes at significant financial sacrifice. Motley Rice makes me proud to be an InjuryBoard member.

The Bavis family says that “settlement has not been in our vocabulary”; they have, from the beginning, sought a public airing of their grievances. And Motley Rice has been by their sides, the entire time. The article questions whether or not a trial will get them the public disclosure that they seek, but that is not the point. They want the chance, and indeed, they enjoy the right to prove, in a public trial, what Motley Rice attorneys say is a case of gross negligence by United and others, in allowing the 9/11 attacks to occur. Motley Rice attorneys indicate that all of the above mentioned security breaches, and more, happened despite the fact that all of these breaches

“were absolutely known to these defendants before 9/11, and should have been addressed before this could happen.”

And, in the aftermath of the tragedy, United, Boeing, and Boston’s Logan Airport’s security firm all accepted blame and apologized, right? Wrong! All of them; every single one of them denied liability! Only when it became clear that the Bavis’ were serious about seeking a trial did they propose an admission of liability and a trial on damages alone. That proposal was rejected by the Bavis family, Motley Rice, and, ultimately, the presiding judge.

As I said, there is disagreement in the legal community as to whether a trial will get them the public disclosure they are looking for. Kenneth Feinberg, for one, calls their expectations "unrealistic". he counsels the family to review information gathered by the special commission of the House and Senate because that is where the critical information has been assembled. Another prominent aviation attorney agrees and states that

“the only resolution the courts can give is money.”

I must strongly disagree; I state, categorically, that if that is this attorney’s view of the civil justice system, I choose to be represented by Motley Rice. The article quotes Michael Sandel, author of "Justice: What’s the right thing to Do?" who says:

“The primary purpose of civil courts is to settle claims and to provide damages and compensation. But courts are public institutions, and in this case it sounds as though the family cares more about having a voice than winning a settlement…That’s a perfectly understandable human impulse: to express a public grievance, in hopes of holding an industry accountable,”

Our civil justice system does not mandate that we settle cases because it is expedient to do so and because the system, itself, pressures us to be "reasonable". The system provides courtrooms, judges, juries, court reporters and it welcomes the public to view the proceedings. This is our American system of justice. Other 9/11 victims, who could not afford the public stand taken by the Bavis family, are applauding its decision. They too will be happy to see those in charge of 9/11 airport security brought before a jury of ordinary citizens and required to answer hard questions about their serious breaches of security on that fateful day. And when all the evidence is heard, when the judge reads the instructions, when the jury announces that it has reached its verdict, then, and only then, will there be closure. And when the family stands to hear that verdict, Motley Rice attorneys will be right there, by their side, as they have been for eight long years.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.