- Danny Cevallos: Families of Malaysia Airlines Flight 370 need legal counsel
- Cevallos: Malaysia Airlines and Boeing are looking to minimize their financial risks
- He says a treaty limits carriers to pay $175,000 per passenger in accidents
- Cevallos: Don't criticize the lawyers, because they can help relatives file claims
As the search for the missing Malaysia Airlines Flight 370 continues, both the Malaysian government and the airline have come under sharp criticism. Some say that all involved parties, including the manufacturer Boeing, are circling their wagons and bracing for a long public relations siege while the families of the missing passengers continue to grieve.
Meanwhile, others have stepped in to help the relatives of the passengers. One group of emissaries from the United States has traveled across the globe at their own expense to offer assistance to the grieving families. However, instead of being welcomed, their arrival was reported with thinly veiled revulsion.
I'm talking about the lawyers.
The lawyers were described in reports as "descending" on the scene and "hovering" around the families. Apparently, stereotypes about the legal profession exist around the world.
But the bias toward lawyers is logically indefensible.
Malaysia Airlines and Boeing are not charities
These gigantic corporations are legally obligated to minimize their financial exposure. This means that every move they make is strategically calculated against their legal adversaries. And those adversaries are civilians. More specifically, they are bereaved mothers, fathers and other family members of those who were aboard Flight 370. Talk about David vs. Goliath.
How well do you know the Montreal Convention?
The Montreal Convention is an international treaty signed by 97 countries that addresses the liability of air carriers in international flights. It contains strict limitations on the time in which a claim may be brought. It holds a carrier strictly liable in the approximate amount of $175,000 per passenger in the case of an "accident."
However, if a plaintiff is seeking an amount in excess of the prescribed (approximately) $175,000, the convention permits the carrier to prove the damage was not due to the negligence of the carrier or was solely due to the negligence of another party. So, the airlines may be able to legally minimize their loss to only $175,000 per person if they can blame someone or something else.
It is widely agreed that American courts will be the best venue for the families, but the convention has strict rules about where the families can file suit. If these families cannot figure out how to navigate the convention's jurisdictional complexities, they will be stuck litigating against an airline in a courthouse in Kuala Lumpur, when they might have sought justice in a U.S. court.
Did you know all that? If you didn't know it, then do you expect a family from Chongqing, China, should have to research this in the local law library? Of course not. They are entitled to legal help, and it's never too soon to get them help.
'Too Soon' doesn't apply to legal representation
If you didn't know even these basics about the convention, how fair is it for a working-class Chinese family to navigate the complexities of the treaty in an American court? The logic is inescapable: These families should not be required to litigate these complicated issues in court alone. They should have attorneys to help them.
And if we agree that they should have lawyers, then they should have them from the outset of the adversarial process. After all, do you think Boeing and Malaysia Airlines think it's "too soon" to consult with their attorneys? If these corporate juggernauts are entitled to counsel, it stands to reason that a grieving mother of a Chinese Flight 370 passenger with zero legal training is, too.
Safeguards of the republic
Lawyers are the "safeguards of the republic;" they are the last bastion of defense for the populace against the government and large corporations. During his extended stay in America, French political historian Alexis de Tocqueville observed that American lawyers would be best positioned to guard against tyranny and protect natural rights in a mass democracy.
The families of Flight 370 passengers will receive the services of highly skilled attorneys who will take on the costs of litigating this case against Malaysia Airlines, a risky venture that would consume a good deal of time, resources and effort. The families will not have to front one dollar, ringgit, or yuan.
What other skilled profession provides services, advancing all the costs, and charges no fees unless you have a successful outcome? Try that with your doctor. See if he'll operate on your herniated disc with the proviso that you'll only pay if the surgery is a pain-free success. Even the controversial Affordable Care Act never dreamed of an expansion of patient rights to this degree.
Of course, attorneys stand to earn fees from contingent fee cases, but they also acquire all the risk; they lose every penny they invest in a client if the case is unsuccessful. An attorney who takes on a high-risk contingent fee case invites financial ruin if he or she doesn't prevail.
No one expects the families of the missing passengers—already undergoing a traumatic experience—to single-handedly deal with corporations in full damage-control mode. Even if it's true that the prospective plaintiffs' lawyers in this case stand to profit from this case, Malaysia Airlines and Boeing are trying to save many millions by managing their legal exposures.
That the lawyers are described as "descending" on the scene shows that we've come a long way from Alexis de Tocqueville's positive view of legal counsel. Certainly, the practice of law has changed significantly since that time. The robed barristers of centuries past bear little resemblance to lawyers like Jamie Casino, who recently advertised during the Super Bowl. But whether they are bearing white wigs or flaming sledgehammers, all are officers of the court, and all should try to help the masses who could use legal counsel at times of tragedy.