University Times

In an unprecedented move, the American Trial Lawyers Association has called for a moratorium on civil lawsuits that might arise from the Sept. 11 terrorist attacks.

It's not a permanent ban, and the association can't enforce it. But the moratorium call should be "very effective," according to law professor Ron Brand, director of Pitt's Center for International Legal Education.

"Normally," he said, "people think of American lawyers rushing to the scenes of disasters the instant something happens, like sending planeloads of lawyers to Bhopal, India," right after the catastrophic toxic chemical leak there in 1984.

"There are advantages to filing early, because you can get right out and begin collecting evidence and preparing your case," Brand said. "But the legal community also appreciates the negative image of a bunch of lawyers filing lawsuits right away. There will be plenty of time to figure out the legal issues on this one."

Issues are expected to include:

* The extent to which airlines can be held liable for deaths and injuries. Family members of passengers are expected to argue that lax airline security led to their loved ones' deaths. It's unclear whether victims on the ground will successfully make the same claim.

"Reportedly," Brand said, "representatives of the airlines were in the halls of Congress immediately after the attacks, lobbying for legislation that would limit the right to bring lawsuits against them to the estates of passengers" — shielding airlines against lawsuits by people injured, and survivors of people killed, in the World Trade Center towers and the Pentagon.

* Whether the Sept. 11 attacks represented an "act of war," legally speaking. Insurance policies routinely exempt payment for death and destruction resulting from wartime actions.

"President Bush refers to the attacks as an act of war," Brand said. "But traditionally, an act of war is committed by a state. These terrorists don't constitute a recognized government, and appear to be loosely organized. One of the problems in international law right now is that we are suddenly dealing with entities that simply haven't been part of the system and the legal terminology we've been using."

* Legal action against the terrorists. President Bush has vowed to bring Osama bin Laden and other members of the al-Qaida terrorist collective to justice. While many envision a criminal trial, Brand is more intrigued by the possibility of civil lawsuits against terrorists.

"To begin with, the survivors [of Sept. 11 victims] could sue the estates of terrorists who hijacked the planes. I would guess those estates wouldn't be very large, although some of the terrorists had been living in the United States for a while and might have had some assets."

Civil action against bin Laden would hinge on the question of jurisdiction, Brand said. "For criminal actions, there is something called universal jurisdiction, which was invoked against [former Chilean President Augusto] Pinochet. But in a civil action, you need to establish that you have personal jurisdiction. In the United States, that usually means that the defendant must have engaged in some activity within a state, or engaged in an act outside the state that had direct effects inside the state.

"This is different from a product liability suit, where a corporation sends its goods into the state and makes money off of that," Brand explained. "The language that the U.S. Supreme Court has used on this is that the defendant 'has purposely availed itself of the benefits of the legal system of the jurisdiction.' "You could argue that bin Laden's business is terrorism, and he sent his representatives into a state to commit terrorist acts."

A civil lawsuit could include a call for punitive damages against bin Laden, who reportedly remains a millionaire despite having spent most of his $300 million personal fortune.

"It's all likely to have, at most, symbolic value, but it's an interesting possibility," Brand said.

–Bruce Steele