(right, Plaintiffs' attorney Don Migliori)

I'm going to make a modest proposal in response to the "eve of trial" settlement of fourteen 9/11 lawsuits in the wake of a critical ruling from the United States District Court. 

That ruling? 

 A "cockpit recording that captured the sounds of passengers trying to retake control of United Airlines Flight 93 before it crashed into a field in Pennsylvania," would be permitted to go to the jury.  See today's NYT article More 9/11 Lawsuits are Settled.

It's no surprise to hear Donald Migliori, a lawyer for the plaintiffs, say that

Judge Alvin K. Hellerstein’s ruling on the recording last week had moved settlement talks forward. He said it became clear that jurors would hear evidence that passengers were aware the plane had been hijacked and had reacted heroically.

Here's the proposal. 

The courts should be deciding these issues early in the case.  How much discovery had to be done (???any???) and how many motions filed before this Court was willing to go out on a limb and say, "gee, evidence that passengers on the doomed flights knew their plane was being hijacked is relevant (or not!) or too inflammatory (or not!) to the just resolution of the claims brought by families of the passengers?"  

Here in California, we have established a Complex Court system in which wide latitude has been given to the Judges to raise just these kinds of issues early in the litigation unconstrained by procedural rules that might prevent sound case management. 

As California Appellate Court Justice Ruvolo recently emphasized  

The judiciary needs to engage now in a vigorous debate to determine whether the current approach to civil justice is efficacious . . . We must . . . consider possible reforms needed to ensure prompt, and fair, trial dates, and cost-efficient pretrial and trial procedures for cases where ADR has been unsuccessful or is inappropriate."

My own clients have, most unfortunately, been victims of a Judge's inability to effectively manage his/her caseload and unwillingness to make any ruling before its time, which, for some jurists, means when they absolutely have to in motions in limine filed immediately before trial or in evidentiary rulings during trial.

Only some of these in limine and evidentiary rulings require the context of the actual trial to make sense and permit a reasoned ruling.  The cockpit tape, however, seems a good example of a decision that, if made early in the litigation, could have led to the swift resolution of these cases rather than a last minute settlement before trial a full six years after the event giving rise to suit.

To those judges engaging in the often daunting and time-consuming activity of actively managing their case loads with too few resources to do so, we praise you.  Those who are not know who they are.  

WARNING WAR STORY AHEAD

Once, long ago, when our client was the defendant in two identical lawsuits in two federal courts in different states, we filed motions in both courts to consolidate them in our local court.  Frankly, we wouldn't have minded that greatly had they been consolidated in the foreign venue, as long as we could move forward with the litigation.  

We were not happy, however, to wait two years for a ruling.

Because you never want to ruffle a court's feathers when your motion is pending, we spent a fair amount of time and mental energy deciding what might be the best course to pry a ruling out of the court.  Finally, my colleague suggested we file a "Motion to Rule."  Because the motion did not, we believed, exist, my colleague called it THE THING.  

We filed it, deferentially, in both courts and still didn't get a ruling.  Eventually, the case settled.  Today, we might have asked our opponents to mediate or even arbitrate so that we could at least have the opportunity to a business dispute that was costly to both parties.

So, my modest proposal.  Case management.  Early rulings on motions that, if resolved, could assist the parties to do early that which they are now likely only to do late -- negotiate a resolution.