Should the Aviation Accident Victim Choose An Attorney Who Is Also A Pilot?

Not necessarily.

The accident victim should retain the best aviation contingency fee attorney he can find, regardless of the attorney’s piloting credentials. Rather than asking whether the prospective attorney has a pilot’s license, the victim should ask whether the attorney has a history of successful jury verdicts in aviation cases. A record of successful verdicts is important even if the victim would prefer to settle rather than go to trial. Defendants and their insurance companies will seldom pay a fair settlement to a victim represented by an attorney who has not proven that he can take an aviation case all the way to verdict. The lack of a trial record is a weakness that a defendant or the insurance company will always exploit. It’s a weakness that no amount of piloting credentials can make up for.

Of course, many of  the aviation lawyers who own the best trial records are also active pilots. That's because current piloting experience is an advantage when interviewing witnesses or taking their depositions, sifting through evidence, and working with experts.

For this reason, the manufacturers who are to blame for an accident often chose lawyers who are pilots to defend them. They feel that, all other things being equal, lawyers who are pilots have an advantage over those who aren’t.

But for the victim of an aviation accident, the prospective aviation attorney's record at trial is always more important that his flying credentials. If the aviation attorney doesn’t have a history of successful jury verdicts, that lawyer – regardless of whether he holds a pilot’s license -- is a poor choice.

Related Post: Helicopter Crash Lawyers Bribe Judge, Settle Case, Get Sued

How Soon After An Aviation Accident Must An Aviation Attorney Be Hired?

The victim's family is seldom in the best emotional state to make important decisions right after an airplane or helicopter accident.  The stresses can be overwhelming.  Fortunately, hiring an aviation attorney is one decision that is seldom urgent.  It is a decision that, in most cases, can wait.

But how long is too long to wait?  Certainly, the attorney who the family eventually selects will want to investigate the accident, interview witnesses, collect evidence and make sure the wreckage is preserved.  He would like to begin his work while the evidence is fresh. The more time that passes, the harder it will be for the attorney  to prepare the case properly.  That said, as long as the wreckage remains secure in the custody of the NTSB, it is usually safe to wait up to 90 days after an accident before retaining an aviation lawyer.

Some families may want to wait longer than that.  In fact, some may want to wait until the NTSB has completed its work.  That's not a good idea.  In most cases, a lawyer should have investigated the case and, if warranted, filed a lawsuit well before the NTSB's issues its final report, for the reasons discussed here.  

In all cases, the victims must retain an aviation lawyer before the applicable statute of limitations runs.  It doesn't matter how good the case is -- if the applicable statute of limitations expires and no lawsuit is on file, the victim's rights will be lost forever.  Some statutes of limitation may expire as soon as 6 months after the accident.  Of course, every case is different.  Though some of the statutes of limitations are discussed here, determining which statute of limitation applies is a task best left to a qualified aviation lawyer.   

Litigation Expenses

The costs of litigating an aviation accident case can total hundreds of thousands of dollars. The expenses may include expert fees, deposition costs, investigation costs, and court fees. Under the contingency fee agreement, the client does not pay any litigation expenses. Instead, the attorney does. The attorney is reimbursed only if there is a settlement or a judgment in the client’s favor.

Not all attorneys have the financial strength to fund a case properly. As the case progresses, some attorneys may feel pressure to settle on terms that aren't in the client's best interests because they can’t afford to risk their “investment” at trial. Defendants can sense when a plainitff's attorney cannot afford to try a case and take advantage of that weakness. Therefore, before signing a contingency fee agreement, the client should satisfy himself that the aviation attorney is capable of funding the litigation all the way to the end.

Attorney Solicitation

Aviation accidents are newsworthy events, and the victims’ names and hometowns often end up in the papers. When that happens, disreputable lawyers descend upon the family members, hoping to sign the families to retainer agreements when they are most vulnerable.

State ethics laws generally prohibit lawyers from making uninvited in-person or telephone contact with a victim’s family to solicit business. Some states allow attorneys to send the families letters or emails, but even then there are limitations and restrictions on what the letters or emails may say.

If an aviation accident qualifies as a major airline disaster, then federal law comes into play. Federal law prohibits an attorney from making any uninvited contact with a relative of a passenger killed in a major airline disaster during the first 45 days after the crash. The law prohibits attorneys not just from making contact in person or through phone calls, but from sending emails or letters as well. The federal law applies to keep away not just lawyers seeking to represent the families, but also those hired by the airlines or insurance companies. 

Suing the United States Government for an Air Traffic Controller's Negligence

Air traffic controllers work within the guidelines set forth in the Controller's Handbook (pdf), which they often call "the Bible."  The Handbook is hundreds of pages long, and controllers must follow it to the letter.  If they deviate and an accident results, the Federal Tort Claims Act permits the victim to sue the FAA for negligence. 

Sometimes, the Handbook doesn't cover a particular air traffic situation. In those cases, the controller is supposed to simply use his best judgment.  But this would seem to present a problem for the victim of the controller's error.  That's because one of the Federal Tort Claims Act's most important limitations is the "Discretionary Function Exception."FAA Control Tower The Discretionary Function Exception states that a victim can’t sue the federal government for bad decisions that the government left to the federal employee's best judgment.  Regardless of how careless the employee was, the government is immune from suit. 

Does that mean that, if a controller makes an error in a situation not covered by the Controller's Handbook, the victim can't sue?  

No.  Courts have ruled that an air traffic control error never falls within the Discretionary Function Exception. It doesn't matter whether the air traffic situation was covered in the Handbook, or was one left to the controller's judgment.  If a controller's error caused the accident, the victim can sue the FAA for negligence, just as though the FAA were a private party.

However, certain other rules will apply to the victim's lawsuit: 

  • Before starting the suit, the victim must file a claim against the government on a Form 95: 
  • The lawsuit must be filed in Federal Court, not State Court;
  • The judge -- not a jury -- decides the case;
  • No punitive damages can be awarded; 
  • The victim's attorney can charge a contingency fee of no more than 25% of any judgment that the court renders; 
  • If the FAA settles out of court,  the attorney can charge a contingency fee of no more than 20%.

Aviation Lawyers and the Contingency Fee Contract

Most victims of a helicopter or airplane accident can't afford to pay aviation attorneys an hourly rate to investigate the cause of the crash or to take an aviation lawsuit to trial.  For these people, the doors of the courthouse would be essentially closed were it not for the contingency fee agreement.  The contingency fee agreement places the victim on a level playing field with the aviation manufacturers, insurance companies and other major corporations who may be responsbile for an aircraft accident.  Under a contingency fee agreement, the client hires a lawyer, but if there is no settlement or verdict, the client pays nothing to the attorney for his work in investigating the case, initiating the lawsuit, or taking the case through trial.  All costs associated with the investigation and the lawsuit are paid by the attorney. The contingency fee agreement allows any victim access to the legal system, regardless of the victim's financial circumstances.