Remembering 9/11 Reminds Us that Justice is Not Just About Money
(image, right, from the Plaintiffs' Counsel's 9/ll Families United to Bankrupt Terrorism web page)
We were just talking yesterday about our courts' obligation to provide that which the entire civil justice system hasn't been providing for [almost] my entire legal career: a swift adversarial process to resolve disputes and make public the way in which we, as a society, adjust the civil rights and duties of our citizens.
The justice system's inability to deliver on that essential obligation is once again highlighted by the upcoming 9/11 victim trials discussed in today's New York Times article, "Settlements Do Not Deter 9/11 Plaintiffs Seeking Trial." As the Times reports, relatives of some victims who were killed in the planes hijacked on 9/11 say
they would continue fighting in court to address their questions about how Islamic terrorists bypassed airport security, commandeered four jets and killed thousands of people.
It's Not Just About Money
This is consistent with my experience as a mediator. It becomes too easy for all of us to believe that those who seek recompense for civil harms are "just in it for the money." (See the link to my post on incommensurability here and the subjective experience of money here).
When settling cases like this, impasse often occurs when the monetary terms are sufficient but no one has yet explained, for instance, why their mother died in the nursing home for no apparent reason. People want answers.
One of th[e] relatives, Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to strike the World Trade Center . . .
“The frustrating thing is not having a trial date,” he said yesterday. “The wheels of justice turn excruciatingly slow. It doesn’t change my mind any. My desire and goal is to try to find some answers. I want to know why Abdulaziz Alomari and Mohamed Atta were allowed to walk on planes in Portland, Me., with prohibited weapons. I want somebody to tell me why that happened.”
And Then There's that Thing Called "Apology"
Recently, I received a call from a fellow mediator in the midst of a settlement conference asking whether he could guarantee that if the defendant apologized during the mediation, his apology could not, under any circumstances, ever be used against him in a criminal trial.
I'd written several articles on mediation confidentiality so he was just getting a second opinion before going out on a limb.
"Guarantee?" I asked.
"Guarantee," he replied. "The plaintiff is satisfied with the monetary terms of the settlement but insists she'll go to trial unless he apologizes."
"I certainly wouldn't guarantee it," I replied, "but would you like me to help you brainstorm some work-arounds?"
This mediator, one of the great ones at my ADR firm Judicate West, didn't need the brainstorming help. He did what we mediators often do. He "channelled" the apology from the defendant to the plaintiff in the defendant's absence. And it worked.
When Apology Isn't Enough: Public Accountability
There are times when a private apology isn't enough. Sometimes people need to see civil wrongdoers made publicly accountable in a court of law. The Times article again.
Several of the families have said in interviews that their motives were not just economic. They have said that they wanted accountability from those they considered responsible for the attacks — including the two airlines; the airport security companies; Boeing, which manufactured the aircraft; and the Port Authority of New York and New Jersey, which owned the World Trade Center.
Carl Tobias, a law professor at the University of Richmond, said . . . [he thinks] the dynamics here may be different from what I would call more garden variety kind of tort litigation,” he said. “It doesn’t seem this is entirely driven by money, though it may be for some people. People want to tell their stories and want to find out as much as they can in court.”
There Are No "Garden Variety" Kinds of Tort Litigation
Professor Tobias' opinion is right, as far as it goes, but it is not, unfortunately, "right on the money."
Every mediator who helps people settle injury cases (or commercial cases for that matter) knows that there is no garden variety case. Not to the parties. No dispute is is ever "entirely driven by money," except, perhaps, ones brought by a sociopaths or vexatious litigants or driven by unscrupulous lawyers who, as someone once said, "ride their clients like mules for the money." And even then something other than money, some pathology, is driving those people's mad obsession with things monetary.
Counsel for the Plaintiffs, [Donald] Migliori, summed up by saying that:
he expected that some families, especially those who had relatives who died in the planes that struck the twin towers, would insist on a trial.
The terms of the settlements were sealed. But Mr. Migliori said the families felt vindicated. He said they “had reached a point where they were satisfied that the mix of their motivations — from compensation to accountability, to answers — was satisfied.”
The first trial, brought by the relatives of Dr. Paul Ambrose, a passenger on American Flight 77, which crashed into the Pentagon is scheduled to go to trial at the beginning of November.