The Hardest Job in the Law
The Judge Who Hears September 11 Suits, and His Recent Decision to Let The Suits Go Forward

This is Part One of a series of columns by Professor Sebok on Judge Hellerstein's decision to deny the motion to dismiss in the 9/11 cases. - Ed.

Judge Alvin K. Hellerstein of the Southern District of New York may have the toughest job in law today. The Air Transportation Safety and System Stabilization Act of 2001 created the September 11 Victims Compensation Fund (the "Fund"). But it also created very specific federal rules for those who wished to sue for damages arising from that terrible tragedy, rather than opting for the Fund. One of those rules was that all suits had to be heard by a federal court in the Southern District of Manhattan, where the World Trade Center stood. Judge Hellerstein is the judge who has to hear all the suits.

I used to think that Ken Feinberg had the toughest job in law. As the Special Master for the Fund, he is responsible for helping thousands of grieving families of September 11 victims come to terms with their loss; for answering their many questions; and for satisfying their concerns about why the Government's compensation scheme looks the way it does.

But Judge Hellerstein's job may even be tougher. What he does now will affect whether these families will even apply to Ken Feinberg's office in the first place.

On September 9, Judge Hellerstein rejected the motion to dismiss the 9/11 suits before him, and allowed them to go forward. It was a brave decision. But, as I will explain in this series of columns, it may, in the end, cause a great deal of unnecessary pain and confusion for many of the 9/11 plaintiffs.

That is because it may give false hope to the plaintiffs that they have the law on their side, and cause them not to opt to take advantage of the Fund. They must decide whether to opt for the Fund, or continue on with their suits, by December 22, 2003. And the motion to dismiss outcome - a victory, to be sure - may wrongly convince them not to do so.

The Fund Option Versus the Lawsuit Option

When it enacted legislation creating the September 11 Victims Compensation Fund, Congress attempted to provide a simple, non-litigation pathway to closure for the families who lost loved ones - as well as for the handful of survivors injured in the attack. The Fund is available only to parties who suffered personal injury (as opposed, for example, to firms that lost property or suffered business interruption).

The Fund offers "no fault" compensation. Under its system, a family or survivor who opted to apply to the Fund must give up their right to sue before Judge Hellerstein. In exchange, they will receive a sum from the U.S. Treasury that has been calculated according to certain principles carefully developed by Special Master Feinberg and his team.

This sum is the "carrot" that makes the Fund option attractive - but Congress also paired it with a "stick." If families don't opt for the Fund, and opt instead to sue before Judge Hellerstein, then they cannot receive full damages. Instead, the liability for the defendants is capped. For example, the airlines cannot be liable in excess of the insurance they carried on each plane that was hijacked on September 11.

Given this cap, it seems very unlikely, in my view, that the suits, even if successful, could result in awards much larger than those being offered by Special Master Feinberg. Thus, months or years of uncertainty and litigation may only result in the plaintiffs receiving the same amount - or, worse, far less - than they would have received from the Fund.

This cap, however, is only one of the reasons families may not want to sue.

First, as I explained in an earlier column, they may find it hard to prevail in court. There is little evidence about how the takeover of the planes occurred. It is impossible to sue the true perpetrators and bring them to justice. And the legal nature of the claim against the other defendants is unusual. Thus, the lawsuits may be a longshot not worth taking, whereas the Fund is a sure thing.

Second, families simply may not want to grapple with legal uncertainty at the same time that they shoulder the emotional and practical burdens of rebuilding their lives. The certainty the Fund provides may be helpful in this respect.

Judge Hellerstein's Most Important Decision So Far: The Motion to Dismiss

Nonetheless, lawsuits have been filed against virtually every entity associated with the 9/11 attack--the various airport operators, private security firms, airlines, owners and operators of the World Trade Center, and Boeing. The plaintiffs include about seventy individuals - who either were injured, or represent those who were killed or injured, in the attack - and ten companies that sustained property damage in the attack.

Judge Hellerstein consolidated their suits for purposes of deciding common questions of law, and, if necessary, for common questions of fact at trial. The most important common question that Judge Hellerstein had to answer was whether to grant the defendants' motion to dismiss.

The grant of a motion to dismiss under federal or state law, is, in essence, a decision by a trial judge to stop a lawsuit before the parties can even begin discovery (that is, the search for, and exchange of, evidence). It tells the plaintiff, in effect, that he or she cannot even force the defendant to answer questions, in deposition or interrogatories, about what exactly occurred.

Thus, the grant of a motion to dismiss is strong medicine, for it takes the case not only away from the jury, but also away from the plaintiff. Accordingly, a judge can grant such a motion only if, even assuming the plaintiff could ultimately prove the factual claims alleged in the complaint, there is still no way the defendant could be held liable at the end of the day.

Judge Hellerstein's Decision to Let the Suits Go Forward

Why might the tort suits filed based on the 9/11 attacks be dismissed? One reason is if the judge concludes, as a matter of law, that the defendant owed no duty to the plaintiff. Without such a duty, there can be no liability, according to the law.

And, indeed, the defendants before Judge Hellerstein say that with respect to almost all of the victims on the attack - and especially to those who were on the ground - they owed no legal duty. (The airlines conceded duty to the passengers on the planes that were hijacked, but that concession was minor. Much of the death and all of the property damage occurred once the hijacked planes struck the World Trade Center.) But the judge held otherwise.

Judge Hellerstein's holding is a victory for the plaintiffs. But it's not necessarily a strong reason for them to decide against the Fund option. Unfortunately, however, because of the timing of this victory, it may carry too much weight in their decisionmaking.

Of course, the plaintiffs' attorneys have doubtless counseled them that a motion to dismiss is just an initial legal determination, not an ultimate win. They have also doubtless counseled them that an appeal to the U.S. Court of Appeals for the Second Circuit may follow (probably at the end of the lawsuit), and the appellate decision could reverse Judge Hellerstein's and the jury's. But the emotional effect of winning the motion may overwhelm these warnings.

Worse, the decision upon which those emotions are based may well be in error - and thus may ultimately be reversed on appeal. In my next column, I will examine why I believe Judge Hellerstein's opinion misstates the law. I will also explain why, when the law is correctly stated, the crucial question of duty is actually much more difficult than he suggests.

It is not an easy question whether, for example, an airline owes a duty to protect the personal safety of the inhabitant of a building on the ground against injury caused by a criminal who uses the plane as a weapon. Unfortunately, Judge Hellerstein's opinion does a very poor job of communicating just how difficult that question actually is.

Judge Hellerstein, as I will explain, also gave too short shrift to policy issues implicated by the 9/11 cases. Yet New York law demands that considerations of policy be taken into account when determining issues of duty in cases like the 9/11 suits. I understand that Judge Hellerstein could not, as a federal judge, explicitly base his decision on policy concerns external to the legal question presented to him. But, as I will show in my next column, the line between policy concerns external and internal to "the law" has been almost erased in this case. As a result, I think that Judge Hellerstein had an obligation to discuss the policy implications of his decision to deny the motion to dismiss.