“It won’t happen to me” - every pilot says that to himself! What kind of pilots would we be, if we did not have that attitude?  A pilot’s trademark is confidence coupled with a strong sense of responsibility; nevertheless, despite our best efforts, accidents can occur.

         After an accident, a pilot is worried about losing a license, being sued and losing his or her job. Perhaps even more important, the accident pilots I have worked with in 30 years of air crash litigation have revealed a strong sense of moral responsibility. This can actually cause pilots to shoulder more blame than they deserve. Many lawyers have clients who blame everyone except themselves for problems. Pilots, only tend to blame themselves. Pilots often fail to take the necessary steps to make sure that they can fly again and avoid unnecessary legal trouble.

         Because of the risks inherent in flying, all airmen should have an understanding of their rights, options and responsibilities in the event of an accident. "Operators" should be even better prepared and have a written Accident Response Plan to carry out in the event of a crash. The confusion, stress and grief that naturally occur after an accident may interfere with your judgment to do the right things at the time. As with emergency procedures, prepare now and learn now to minimize problems later.

         Certainly the immediate focus after a crash is the rescue, medical care, and emotional comfort of any survivor of an air crash. Consider that the passenger victims and their families are not the only ones who suffer. The pilots, co-employees and anyone who comes into contact with the chaos and horror associated with an airplane accident will suffer substantial stress. To add to this burden, the media will invariably conduct interviews to publish "human interest" stories of the accident. The Safety Board will immediately begin their investigations to determine "Probable Cause." Insurance company managers and adjusters will investigate potential claims. Lawyers will investigate lawsuits both on behalf of victims and in defense of the aviation businesses involved. The FAA may start an enforcement investigation with an eye toward a certificate enforcement action.

 

1. Your First Post Accident Checklist:

A. Save yourself and your passengers;

B. Have a stiff drink to celebrate being alive? (Old tradition - now risky since many aviation professionals are subject to alcohol/drug testing);

C. Retrieve a 6" strip of duct tape from your Emergency Kit and place it over your mouth;

D. Remove duct tape only upon arrival at your attorney's office. (Old tradition - still relevant in today’s litigation climate).

 

2. Consult with an Experienced Aviation Attorney Before Giving Statements

         I have seen many cases where aviation professionals involved in serious air crash cases, have given statements right after an accident and later regretted the poor statements they gave. I am asked: “What is wrong with simply telling the truth” - nothing! I will insist that a client tell the truth in any statement given. The better questions are: Should a statement be given? What should be disclosed? Are assumptions being made? At what point does the person giving the statement engage in dangerous speculation? Is a person who has just been through an accident psychologically competent to give a clear statement? What do you think happened; versus what will the facts show actually happened? Are your descriptions ambiguous? Will a judge or juror understand what you meant? Do you clearly remember what the “settings,” of gauges and what the positions of levers and controls, when the problem occurred?  Are you giving a statement about what you normally do or what you actually did? How will your statement be used? Who can have access to it? This is only a partial list of relevant pre statement issues!

         Importantly, an airman may often be able to cooperate with an aviation safety investigator who asks properly phrased questions designed to determine probable cause and protect safety. Cooperation with a safety investigator and prior consultation with your attorney is not necessarily inconsistent. In my experience, I can usually protect my client, and still allow the safety investigator’s interview, as long as I can ensure that the questions are fair.

         An aviation professional is required to make him or herself available for interrogation by an official government investigator from the NTSB. An aviation professional may, under some circumstances, be compelled by a civil aviation authority such as the FAA, to be available for interrogation. But bear in mind, an aviation professional is entitled to advice of counsel and representation before any interview with the NTSB, FAA or any organization.

         Aviation professionals are often concerned about the appearance that will be created if they participate in an interview by an NTSB investigator with a lawyer present. Indeed, someone might ask, "Why do you need a lawyer. Is there anything you have to hide?" The response should be, "No, I want to provide my cooperation, but I want my legal rights protected also."

         Safety Board investigators care only about probable cause for safety not about liability, The safety investigator is not out to hurt the witness, create liability or cause someone to lose their job. But, statements taken by civilian governmental safety investigators are usually made public and can be used for many purposes by lawyers, insurance companies, journalists, employers, etc. Note, the FAA is entitled to be a party to a Safety Board investigation. Thus a FAA investigator may accompany the Safety Board to an interview. That FAA employee can not give you assurances that the FAA will use the information only for safety purposes. The FAA has a mandate to enforce violation.

         Is there always a conflict between safety investigations and legal protection provided by a lawyer in private practice? Not necessarily, but the conflict that can arise when there is a clash between the investigator’s desire to determine probable cause for safety purposes and the attorney’s duty to protect his or her client against liability. Before this conflict erupts into a conflict, the aviation professional needs the guidance of an experienced aviation attorney who can do more than be a zealous advocate for the client. In this context, the client is an aviation professional who can suffer adverse career consequences resulting from non-cooperation with authorities. Recent law school graduates can rattle off a client’s legal right in the United States, to assert the 5th amendment right to refuse to answer questions that may tend to incriminate. Yet, under what circumstances should an airline captain be told to assert “the 5th.” When should a pilot in command refuse to answer a probing question from a government safety investigator; and, if he or she does, what are the career consequences?
        

3. File a Preliminary Accident Report With The Safety Board

         The "operator" of an aircraft is required by law in the United States to notify the nearest NTSB field office immediately after an “accident” by the most expeditious means available. 49 C.F.R. Part  830.5. The operator will then be required to file a written report with the NTSB on the forms provided by the Board within 10 days of the accident. If you run an aviation business, it is a good idea to have a copy of Form 6120 in your Accident Response Binder. When describing the "Nature of the Accident" in Form 6120, consider whether you should speculate or render opinions, or just state the facts if you know them. Recognize that the operator statement will become fully discoverable in subsequent litigation. Any declarations against your interest could be used against you. Take a close look at the “Preliminary Accident Reports published on the NTSB’s web site – they are usually taken from the Operator’s initial accident report. Think about it - within 10 days of the accident, does anyone really know the true cause of the crash?

         In the United States, unless you are a commercial carrier, you are not formally required to report an aircraft accident to the FAA, you are required to report it to the NTSB. 49 C.F.R., Part 830.5. (Note, if you have a POI you might be wise to report even when you don’t have to- check with your aviation lawyer).

         Flight Service Stations and Air Traffic Control Towers are often first to learn of an accident and they relay the information to the NTSB. Recognize that the NTSB investigates for safety; FAA's interest in an action will be to investigate both for safety and to determine whether an enforcement action could be brought against the license holder involved.

4. Complete the Crew Member's Statement With Advice of Counsel

         In the United States, crew members will be required to submit a "Statement" to the NTSB setting forth their recollection of facts, conditions and circumstances relating to the accident. 49 C.F.R., Part 830.15(b). The crew members' statement should only be completed after the crew member involved has recovered physically and emotionally from the shock of the accident in order to be able to provide a factual account.
        
         It would be wise to seek the advice of an aviation litigation lawyer before completing the crew members' statement. Crew members inadvertently make mistakes in completing statements, express speculation as to causation, and make liability enhancing admissions. Such mistakes are sometimes made out of inappropriate guilt based on pride. We can all try to think of something we could have done to prevent the crash - should that go into this statement? Rarely does anyone know all the circumstances involved in an accident when completing these forms.

 

5. Post Accident Statement Confidentiality?

         Here is a partial list of some of the people to whom you may have a temptation to give statements about an accident. Whatever you say to them, or give them in writing, or on tape, is usually discoverable in the United States and may be used against you, depending on the Rules of Evidence applied. Can you guess which person(s) will keep your statements absolutely confidential, to be distinguished from the qualified immunity recognized by some laws, in some circumstances:

*Paramedics
 *Rescue Personnel
 *Treating Physicians
 *Fire fighters
 *Law Enforcement Officers
 *Other Pilots
 *Employers
 *Flight Instructors
 *Mechanics
 *Clergymen
 *Lawyers
 *Journalists
 *Insurance Adjusters
 *NTSB Investigators
 *FAA Officials
 *Passengers
 *Co-employees
 *Your Spouse

         You got it, the only person to whom you can give a statement with absolute confidentiality is your lawyer (under the Attorney-Client Privilege). Under certain circumstances, in some states, what you tell your spouse, health care providers, members of the clergy and a journalist as to source, may enjoy some degree of confidentiality. However, everyone else can theoretically be forced by subpoena to divulge what he or she has said in a deposition.

         You should be aware that although the NTSB can declare some items in an investigation confidential, it is rarely exercises the prerogative. The Safety Board in the U.S., makes its complete investigative package publicly available, including all statements that have been taken. Consequently, it is strongly advisable that a pilot or other aviation professional that is involved in an accident, obtains the advice of an aviation lawyer before giving any statement.

 

6. Can You Depend On The Safety Board Investigation To Prove Your Case?

Some people feel that the decision of hiring a lawyer can be postponed until after the official safety investigation has been completed. This belief is based on the misunderstanding of the attorney's role and what actually happens after an air crash. The fact is that the most critical evidence in the entire case will be developed immediately after the accident. One cannot depend on the NTSB, the FAA or law enforcement agencies to develop evidence to protect your interests or to defend you against liability. The NTSB is a public safety investigative agency, which is not in the business of developing evidence to prove liability. Also remember, that airmen are often the plaintiffs after an accident. They must bring a claim against other aviation entities which may have caused or contributed to their injuries.

The NTSB determines probable cause and "factors." It does not ascertain percentages of liability. The probable cause/factors determinations of the NTSB are by federal U.S. Law, not admissible in evidence. There is conflict in the case law as to whether NTSB reports are admissible. Some cases hold that the factual portions of the reports are admissible, but not the various opinions expressed therein. Many other courts have permitted almost the entire NTSB report, except for its probable cause determination, to be admitted into evidence.

7.  Use A Lawyer To Conduct Your Own Confidential Investigation

After a crash, many airmen and operators want to conduct their own investigation to determine why the crash occurred. They contact flying friends, technical experts, maintenance professionals, etc., in order to discuss what happened. Likewise, people are tempted to create sketches, notes, diagrams, memoranda or other writings. If you do any of these things on your own, they become discoverable in litigation. Lawyers in the United States, can hire investigators, employ consulting experts, and bring to bear a variety of research and investigative resources on your behalf. The rules of procedure and evidence in the federal and state courts will protect the attorney's investigation after an accident from discovery, under the Work Product Doctrine, in almost all but the most exceptional circumstances. Moreover, your conversations through your lawyer with these investigators or consultants are covered by one of the most sacred privileges in the U.S. legal system, The Attorney-Client Privilege. Thus, if you have any questions, investigative leads, theories, etc., your attorney can investigate them on your behalf, and use consulting experts, if necessary, so as to report back to you in confidence.

8. Preserve Wreckage and any Evidence of an Air Crash

The "operator "of an aircraft is responsible to preserve the wreckage, mail, cargo, and all FAA required records which are maintained concerning the aircraft, its equipment and its maintenance. 49 C.F.R., Part 830.10. As a practical matter, when an accident occurs away from the headquarters of an operator, local law enforcement will be the first persons on the scene. Law enforcement officers will follow local procedure in handling the wreckage scene. The operator should contract local law enforcement as soon as they learn of an accident to insure that protective custody is established concerning the wreckage.

Where the operator or a managing agent of the operator is the first one on the scene, the federal regulations require that operator insure that wreckage is not pilfered and that accident signs are not destroyed until the NTSB arrives and takes over. Bear in mind that this can be a daunting task during inclement weather or where there are a number of bystanders on hand. It is particularly critical to preserve skid marks, debris patterns, propeller cuts, signs of impact, paint transfer indications, spillage splotches, etc. It may be advisable in some cases to videotape or photograph the scene before the NTSB arrives, as long as the evidence is not disturbed. Such evidence can be extremely valuable to experts and attorneys.

Besides physical wreckage, various documents such a logbooks, maintenance records, prior flight history, etc., are essential when sorting out the cause of a crash. If the NTSB field investigator wishes to obtain these documents, ensure that originals are kept for your records and give copies to the investigators.

 

9. File an Insurance Claim and Verify That You Have Coverage

         When you have insurance to cover your aviation operation, check with your lawyer about immediately notifying your broker or the insurance company. Most people will use the telephone, but I strongly encourage a follow up letter written by your lawyer. The letter should ask the insurance company to immediately advise if they have received a claim, confirm in writing that they are acknowledging indemnity coverage and that they will provide a defense. Providing a defense means hiring a lawyer for you and paying the attorney's fees and costs.

         Generally speaking, insurance companies will do one of three things: (i) Acknowledge coverage and provide a defense; (ii) Provide a defense but reserve rights as to whether or not they will acknowledge coverage; or (iii) They may deny coverage and refuse to provide a defense. If there is any reluctance on the part of the insurance company to provide you with unqualified assurance of coverage and a defense, hire your own attorney to defend you in the air crash and to evaluate the coverage issues.
If a real conflict develops between the insurance company and your interests, you may need to hire your own lawyer to protect your interests or demand that the carrier do so.

10. Conclusion - Make Sure You Are Properly Represented

         Many people are not aware that an insurance company controls your defense and decides who to hire for your defense. If you have a serious accident (one involving multiple personal injuries or deaths) make sure that the insurance company hires an aviation lawyer to defend you immediately. Request an attorney that has substantial experience defending air crash cases as opposed to a general personal injury attorney, or one who has pursued aviation as a hobby. You pay the premiums, your liability exposure and reputation are on the line, and you may have exposure beyond coverage limits. Make sure you are properly represented.

                                                               Phillip J. Kolczynski

[*] The issues discussed in this article are based on general, hypothetical situations and do not constitute legal advice for a specific case. The suggestions provided herein are provided by an Aviation Lawyer licensed to practice in California. A specific jurisdiction’s law must be examined for answers to specific legal problems where the crash occurs. The purpose of this discussion is to alert aviation professionals to issues they might encounter operating in any jurisdiction in which modern derivatives of English common law are applied in conjunction with Transportation Law Statutes.

 

Professional Biography

          Phillip Kolczynski, manages his own law firm in Southern, California. He holds an “AV” rating, the highest peer rating for competency and ethics awarded by The Martindale-Hubbell Bar Register of Preeminent Attorneys WITH 30 years of experience in aviation liability and enforcement litigation. In 2005, he was selected as a Southern California “Super Lawyer” in the specialties of aviation transportation and business litigation. He has a national practice, concentrating in aviation, product liability and complex technical cases in federal and state courts. Mr. Kolczynski has been lead counsel in many highly publicized cases, such as The Twilight Zone Helicopter Accident litigation, The Kareem Abduhl Jabbar, Bel Aire fire litigation and the recent Newport Boat Show litigation. Unlike many air crash lawyers, Mr. Kolczynski is also experienced in FAA regulatory compliance and aviation industry  business dispute resolution. Mr. Kolczynski teaches aviation law and expert witness procedures in the University of Southern California, School of Engineering, Aviation Safety Management Institute.

           Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C.  While at the Justice Department, Phil received the Justice Department’s Special Achievement Award for Trial Performance. At Justice, Mr. Kolczynski was a regular lecturer and instructor at the Attorney General’s Civil Trial Advocacy Institute. In private practice, Mr. Kolczynski has worked as an associate and partner in large law firms in Washington D. C. and Los Angeles before starting his own firm in Orange County. He is admitted to the Ohio, D.C., and California bar associations.
        
          Mr. Kolczynski graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December 1976, where he was the Law Review Notes Editor of the Journal of International Law and selected for the International Law Moot Court team.   He graduated from Marquette University, Milwaukee, Wisconsin, in 1969, where he held a Navy ROTC Full Scholarship. Before entering law school, Phil Kolczynski was a Marine Corps Captain and F-4 Phantom Pilot. He holds an FAA Commercial Pilot’s License with Single Engine,  Multi-Engine and Instrument Ratings.

         Phil Kolczynski is a frequent speaker at forensic expert institutes, has lectured nationally at numerous litigation and bar association symposia. He has Chaired the National Institute on Litigation sponsored by the Torts and Insurance Practice Section of the ABA. Mr. Kolczynski has lectured and taught in California CEB programs on Settlement Negotiations and Advanced Product Liability law and as a lecturer in law schools. Mr. Kolczynski is the author of the book Preparing For Trial In Federal Court by James publishing Company (Supplemented 2006).