General Guidance to the Families of the Victims of a Disaster

Introduction

Unquestionably, this is an extremely difficult time for those of you who have suffered devastating personal loss as a result of the disaster. Despite the great sadness that you are now feeling, this is also a time in which you will need to make some informed decisions having serious implications for the future. One of those decisions is whether to hire a lawyer to advise you and your family as to your legal rights and remedies, including whether to accept a settlement offer or start a lawsuit against those who may be responsible for the disaster. You may also need legal advice concerning a variety of other issues, some practical and some legal, such as the status of mortgage or other financial obligations, insurance coverage or other benefits, the care of minor or elderly dependents or the handling of the estate or will of your family member.

If you do decide to hire a lawyer, then you must select a lawyer who will best suit your needs. This brochure is offered to assist you in that decision-making process. If you are considering accepting or seeking compensation from those you believe to be responsible for the tragedy, it is important to find a qualified lawyer to advise you before taking any actions that might jeopardize your rights in the future. While it is not always necessary to hire a lawyer immediately, there are circumstances in which it may be important to you and your family to have legal advice relatively soon after the disaster.

Whether to Hire a Lawyer

The purpose of a lawsuit is to determine the cause of the accident and to identify those individuals or entities whom the law holds responsible for the accident. Those issues are usually determined through a trial. At the end of the trial, a jury generally assesses monetary damages against those parties responsible for the accident and awards monetary compensation to the successful parties who have brought the lawsuit. However, if the parties agree that compensation to the victim is appropriate, and they agree on the amount of compensation, they can settle the case without going to trial.

Because of the notoriety and magnitude of a disaster, you may well be subjected to a wide array of pressures and distractions from outside sources, such as the media, as well as those who have an interest in limiting the amount of compensation paid to the victims, including representatives of insurance companies and potential defendants.

You may also be contacted by lawyers seeking to represent you or your family. A lawyer can help you decide whether to accept or reject any settlement offers which are made to you and which could potentially foreclose you from bringing a lawsuit later. A lawyer can also help you decide what is in your best interest and evaluate the different possibilities open to you. Selection of a lawyer whom you trust and in whom you have confidence is important and you should not make your decision to hire a lawyer based solely upon that lawyer’s solicitation of you.

You may be asked to sign documents, complete forms or questionnaires concerning the victim or your family, or provide information concerning the victim. You may wish to consult a lawyer before signing any documents, filling out forms or giving statements, for your responses might be used against you and your family in a future lawsuit. A qualified lawyer can protect you from jeopardizing your right or ability to recover money by advising you how to respond to any inquiries and by acting as an intermediary between you and anyone who tries to contact you.

One of the first steps a lawyer takes in preparing for a lawsuit is to investigate the circumstances surrounding an accident by retrieving and preserving evidence and by locating witnesses. While in some circumstances, such a commercial air crashes, government agencies are principally responsible for this investigation, it is often important for your lawyer to begin the process as soon as possible before evidence can disappear and before witnesses can forget important information or change their stories.

When to Hire a Lawyer

Because of the important, complex and, frequently, technical issues involved in litigation, if you believe that you may wish to seek compensation for your loss, you should probably hire a lawyer early enough to assist you and your family in a meaningful way. Not only might you want to protect yourself from individuals or entities seeking to undermine your legal rights, but you may want to begin the investigative process as soon as possible. In addition, the law imposes certain time limits for commencing lawsuits or filing certain required notices (sometimes as short as 90 days), and you do not want to forfeit your right to bring suit as a result of unnecessary delay.

Although these practical considerations may seem to be relatively unimportant in contrast to the emotional pain which you are now experiencing, selecting an attorney may prove to be a crucial step towards the ultimate goal of resolving the troubling questions you may have concerning the disaster and ensuring that those who are responsible meet their obligations to you and your family.

Choosing the Right Lawyer

You will want to hire an attorney who is qualified to handle a complex case like a mass disaster and with whom you feel comfortable. A lawsuit may last a long time and, over the course of the suit, you may frequently need to work very closely with your lawyer. In addition, you may need to share personal and, perhaps, painful information with your attorney. Therefore, it is important that you have the utmost confidence in your lawyer, both personally and professionally, and we recommend that you interview several attorneys before hiring one. Most attorneys will consult with you about your case without charge.

We also recommend that you try to hire a lawyer with extensive experience in complex lawsuits. To find the right attorney, you may wish to speak with your family lawyer, if you have one. Another alternative is to obtain a recommendation from a friend, relative or member of the clergy, who might be able to suggest a general practice lawyer in your community, or from a bar association legal referral service. If you reside outside the United States, you should have a personal lawyer in your home community to advise you on issues of local law (such as estate or real property law), in addition to a lawyer with expertise in complex lawsuits.

In searching for the right attorney, be sure to consult only trusted friends and relatives, clergy members, a bar association or other reputable organizations. Although the practice is prohibited, some attorneys pay non-attorneys for referrals. Be sure that any person from whom you receive a recommendation has only your best interests in mind, and that any attorney you choose has extensive experience in complex personal injury cases. Remember, if you are not satisfied with your lawyer, you are free to hire a new lawyer and your legal fees will not be increased if you do.

Unsolicited Communications from Attorneys

If you contact a lawyer to ask about the lawyer’s services, that lawyer may respond by writing to you, telephoning you or meeting with you in person. However, if you have not first contacted a particular lawyer, that lawyer may be restricted in how and when he or she may communicate with you. The rules regarding lawyer solicitation vary from state to state. But, in most circumstances, if you have not first contacted a lawyer, that lawyer may not solicit your business by approaching you directly, in person or by telephone. Nor may someone acting on behalf of the lawyer contact you in person or by telephone. You should feel free to tell any lawyer or non-lawyer who approaches you personally that you do not want to be contacted. Your request should be honored.

In most cases, it is proper for lawyers to mail you letters or brochures about their experience and abilities, as long as the mailings are not false, deceptive or misleading. In the case of an airline disaster, however, it is unlawful for a lawyer to contact you in any way, including by mail, until 30 days after the date of the disaster, unless you have contacted that lawyer first. If you are being harassed by a lawyer or someone acting for a lawyer, or if you believe that a lawyer has contacted you improperly, you may file a complaint with the appropriate District Attorney’s Office or attorney disciplinary or grievance committee.

Legal Fees

Most lawyers in cases involving personal injury or death will charge you a “contingent fee” based on a percentage of any settlement or recovery you receive. In many states, the maximum percentage is limited by law. In New York, for example, the limit is 33-1/3%. You may negotiate with a prospective lawyer and request that he or she accept a lower percentage of the recovery. The lawyer may agree to do so and, if not, you are under no obligation to hire the lawyer. If you have more than one lawyer working on your case on a contingent fee basis (such as a personal lawyer in your home community as well as a lawyer experienced in disaster cases), you should still pay no more than the maximum percentage, which will be shared between the lawyers.

Once you hire a lawyer, you should remember that you are free to change lawyers at any time if you are dissatisfied with the lawyer’s services (although the lawyer you hire may be entitled to some compensation or share of the recovery and to reimbursement for expenses in connection with your case). In many states, including New York, a lawyers’ fees in a wrongful death case must be approved by a court.

Conclusion

Your decision to hire a lawyer should be made calmly and intelligently, with no less care than any other important decision you make in your life. We urge you not to let pressure and confusion from outside sources force you into making hasty choices at this most difficult time.

The Association of the Bar of the City of New York