Air Disasters, Legal Fees And Justice for the Victims

Brian Alexander, a former pilot and the lawyer who represents the largest number of air and ground victims of the Sept. 11 attacks, is well acquainted with the kind of accident that leads to smoking jet wreckage. He spends his days contemplating loose wing screws, glitchy software, expanding vapor on hot tarmac, or inattentive, chattering airport security personnel who let computer cases pass without inspection.

His spic-and-span corner office on Park Avenue is across from the Satellite Air Terminal-convenient for serving subpoenas-and doubles as a giant display case for pictures of four healthy little kids. He wears a black cable-knit vest and white oxford shirt and, fighting off a cold, his eyes are more basset hound than Top Gun . Look closely at the walls, though. Model airplanes and helicopters, an American Airlines cork coaster and a thick flight-security manual share shelf space with videotaped testimony identified by the flight numbers of the doomed jets involved, and a book whose spine reads Aviation Insecurity .

Mr. Alexander’s phone rings-and rings again and again and again. On the line are federal negotiators for the 9/11 Victim Compensation Fund, trying to work out the fine points of millions of dollars in payouts. As he chats amiably, there’s the distinct but invisible presence of dollars billowing through the air like the bits of paper over New York after Sept. 11.

This is his job: to put a dollar value on each of the dead and find a culpable party to pay it. In the 9/11 case, there are almost as many of the former as the latter. Mr. Alexander, 40, is a partner in the law firm of Kreindler and Kreindler. For the last half century, the firm has filed suit on behalf of plaintiffs in nearly every single major crash around the world, from Sioux Falls to Lockerbie to Guam and the South China Sea. The list includes Egyptair, Valujet, Pan Am, T.W.A., Swissair, various military plane crashes, and accidents involving commuter puddle-jumpers and private planes.

The Kreindler firm’s reputation as the plane-crash firm dates back to the 1950′s, when a DC-6 flew into an orphanage in New Jersey. Lee Kreindler heard about it, and “it pulled at his heartstrings,” said Mr. Alexander. The Harvard Law School grad took some airplane-maintenance courses and prosecuted the case. Kreindler later literally wrote the book on air-crash litigation, a three-volume treatise called Aviation Accident Law . In his obituary last year, The New York Times credited him with bringing his firm to a level of “enormous technical sophistication” in the field. That necessary sophistication “may explain why a relatively small number of law firms undertook air disaster work,” according to the obituary.

Fifteen years after he flew airplanes and helicopters as an Army captain at the Pentagon’s airport, Brian Alexander is no longer buzz-cut and spit-shined, but he retains the no-bullshit soldier’s speaking manner. “One thing you always know: It is never the innocent passenger sitting in 9-B trying to get home to his wife and kids’ fault. Never. We take every case with that predicate. We know that he didn’t have anything to do with that crash.”

Mr. Alexander was practically conceived on the tarmac. His parents met at J.F.K., where his dad was a flight-traffic controller and his mother worked for American Airlines. Born in Queens, reared on Long Island, he went to high school at Donald Trump’s alma mater, the New York Military Academy. After West Point and a stint in the Army, he went to law school.

Mr. Alexander insists that his firm does not ambulance-chase air disasters. “We do not solicit at all. We don’t advertise. Other lawyers usually are the source. It’s much more challenging in this day and age because, frankly, this is the tough part of being a plaintiff lawyer. Most of my brethren on the plaintiff side of things are not guys that I’m inviting over to the house for dinner.”

Mr. Alexander argues that Kreindler’s lawsuits have made aviation safer. They’ve also pushed airlines deeper into the red: The firm was on the forefront of the lawsuit that extracted record-setting sums from Pan Am and now Libya for the victims of the Lockerbie bombing. When T.W.A. 800 crashed, the National Transportation Safety Board called Kreindler, looking for a bomb expert to rule out a missile. Kreindler experts also identified a serious flaw in a widely used aviation-software program that had caused a crash in Guam. The firm gets huge payouts for clients and is paid on contingency-at a percentage that Mr. Alexander says is less than that calculated by most other plaintiff firms. “In a lot of our cases we have a number of clients, and there’s an economy there that we pass onto our clients. In something like 9/11, there’s a very, very small fee.”

“Small” is a relative word, in air-disaster terms. The Kreindler firm led the lawsuit that forced insurers for Pan Am airlines to pay $500 million to the Lockerbie families-the largest settlement in the history of aviation tort claims. But, according to the Financial Times , that sum “pales” in comparison with the agreement that Kreindler lawyers negotiated with Libya. In that case, Kreindler represented 120 families who agreed to pay as much as a third of any settlement, plus expenses, to the lawyers. The firm made a reported $300 million in fees on a $2.7 billion settlement.

The average 9/11 payout to Mr. Alexander’s clients from the Victim Compensation Fund was between $2.5 million and $3.5 million, he says. (Those numbers are significantly higher than the $1.8 million median award, according to Victim Compensation Fund statistics.) His personal best so far, he says, was a settlement of at least $25 million for an individual in another crash.

Mr. Alexander and his firm, along with other high-profile trial lawyers, initially resisted the Victim Compensation Fund, because it required victims to waive their right to sue. Mr. Alexander still contends that the rush to pass it (less than two weeks after the attacks) was a sellout to the airlines, whose lobbyists, he says, “were spinning up their need for cash before the smoke from the W.T.C. stopped billowing”-in fact, they were going broke anyway.

Charles Miller, Department of Justice spokesman for the Victim Compensation Fund, points out that the families who accepted the fund’s payout could entirely avoid attorney fees: “A lot of attorneys represented on a pro bono basis …. An organization was created by the trial lawyers to work with claimants on a totally free basis.”

The Kreindler firm never went along with the American Trial Lawyers Association’s suggestion that lawyers give free legal advice to 9/11 victims. Instead, Lee Kreindler penned an op-ed in the New York Law Journal in August 2002 arguing that only by actually paying lawyers could the victims assure themselves of “high professional quality work.”

Most of Mr. Alexander’s more than 400 9/11 clients eventually took the federal payout. The deadline for making a claim with the fund passed in December 2003. About 20 refused and joined a total of 54 others in filing suit against a laundry list of defendants, including the World Trade Center’s builders, architects and engineers, the Port Authority and other governmental entities, all the major airlines, and the security firms that worked for them.

“I haven’t ranked them, and I generally don’t rank them,” Mr. Alexander said of the defendants. “We recognize there is no one thing or one person who causes the tragedy, whether it’s an airplane crash or Staten Island ferry” (yet another case Kreindler expects to take on). The attack on the W.T.C. would seem to be an exception: 19 terrorists hijacked and crashed four planes. “Clearly,” Mr. Alexander allowed, “they are the first domino.” And yet he’s already filed a suit-on behalf of the families of more than 1,000 9/11 families-against a list of foreign entities hundreds of pages long. On the home front, he believes, the blame perhaps starts in Washington, followed by dozens of potentially culpable private parties. “There are dominoes here. You can start wherever you want-start with the intelligence failures. There is no question we were asleep at the switch.”

Conspicuously off the list of defendants is the U.S. government. “That really is not a viable option. As I learned in the military cases where I represented soldiers”-he sued the U.S. over the Osprey helicopter crashes in the mid-1990′s-”the bottom line is, the government can be as stupid as imaginable and it’s defensible under the law.”

Mr. Alexander’s list of viable defendants includes the Port Authority, for example, and airports in Newark, Boston and Washington, D.C., where the hijackers began their trips, then dozens of security firms, airlines, and engineering and architectural concerns. Mr. Alexander says the W.T.C. builders, engineers and Port Authority should have expected the towers were in danger from airplanes-whether crashed deliberately or otherwise. He contends the inferno that preceded the collapse of the towers was caused more by paper and plastic in the building, and failed fireproofing, than by jet fuel. “The jet fuel burned off in seconds,” he argues. “As for the fireproofing, the Port Authority absolutely knew there was a failure. In the early 1990′s it had all fallen off, and they brought suit: They had sued the people who had put it in. And the core of the building. Kevlar? Brick and mortar? No. Gypsum. Particle board!”

Mr. Alexander successfully defeated an effort last year by the airlines to have the lawsuit dismissed. Now he and his colleagues face a bigger hurdle put up by the government last week. Although the feds aren’t defendants in the suit, they intervened to prevent the plaintiffs from examining safety-guideline documents (the Checkpoint Operations Guide) in use by the airlines before 9/11.

The government is claiming that the C.O.G. is “secret, sensitive information.” Even the security clearance Mr. Alexander won by submitting to fingerprint and background checks can’t get him access to a document he says was once lying around airport staff rooms all over the country. Examining the relatively mundane checklist is crucial to proving that the airlines and their security contractors failed to uphold the law requiring them to ensure passenger security. Mr. Alexander contends that the guidelines actually did not prohibit knives with blades smaller than four inches from being carried on to planes. He pulls out a ruler and measures off four inches. “If that was a knife in my hand, you would say, ‘What is up with that?’ This guideline is inconsistent with the specific requirement of the law imposed on air carriers, namely to keep dangerous weapons off aircraft. I am shocked that the C.O.G. did not prohibit all knives. And they had pepper spray and mace. No ambiguity there; those were restricted items. They failed in every way here. What’s amazing is that these guys [the hijackers] were on watch lists. They met the criteria for the old CAPPS [the computer-assisted passenger threat ranking]; all their luggage was screened separately through the bomb detectors; some of them had ID problems. If that isn’t a red flag to stop at the gate! Then, most remarkable to me, at least half of them set off the magnetometers-had to go through twice and then ended up being wanded. And they got on the planes!”

Mr. Alexander also points out that the airlines had an unofficial policy of profiling Arab men-another screening system that failed. “If you listen to the wife of the Flight 11 pilot, she testified to the 9/11 commission that the Middle East profile always sent shivers down their spine. You didn’t know what they would do. All the people in the airlines knew that. You might have put two and two together that day, all the red flags. Somebody would think, ‘Gee, I got four or five together on a plane.’ What’s the point of any of it if you are not going to connect any of the dots?”

A frequent flyer who logs 100,000 air miles annually (he prefers Continental for its newer planes), Mr. Alexander said his line of work hasn’t made him reticent about flying. “I do look at the plane. My eyes are always open. Sometimes I look up and see a kid at the wheel on a puddle-jumper and get a little nervous, but I never have had occasion to get off a plane. Flying is very safe.” He’s more concerned about what happens on the ground. “On the security front, I am really very skeptical. I had a screener carry my computer case around the mag machine … forgot, I guess. I said to him, ‘You’ve got to run that through.’ I have these big boots-some places run them, others don’t. Why? I go through with metal in my pockets-sometimes it goes off, other times not. I am always concerned at Newark when I hear the conversations [of the screeners], and they are looking at each other and not glancing at my stuff. We are not protected, and I am not personally comforted by the actions taking place so far.”

Mr. Alexander firmly supports passenger profiling and data collection, even if it makes civil libertarians angry. “I support a lot of pain in that area. The traveler should be willing to put up with it. And they should fund the technology. As an American, I have absolutely no problem with it. I might be a minority amongst my brethren, but I think if you start too far on one side, you can always correct it. We are not talking about getting locked up at Gitmo here.”

On the day when airplanes were weaponized, he was thinking litigation-but not about the prospect of lawsuits by thousands of victims of terrorism. “I was thinking about what a spectacularly beautiful day it was, as I flew from Newark to Dulles at 8 a.m. for a deposition with an NTSB metallurgist. I took my head out of my papers for two seconds-not even to note the towers, but to look at the sky, because I never remembered a day so beautiful in the thousands of hours I have flown up and down the East Coast.” He thinks he could have walked past some of the passengers boarding the doomed Flight 77 in Dulles that morning. He picked up his rental car and drove to the deposition without turning on the radio. Word of the attacks only reached him at 10 a.m., when someone opened a door and announced it. The defense attorney, he recalls, didn’t want to stop the deposition.

“I took the risk of stopping it without his consent and called New York to see what was going on. Thankfully, I had the rental car, and I drove home that night. So that was it, and I didn’t think about anything to do with litigation until much later. I thought the same things everyone else thought.”