Families of those on board MH370 should consult lawyers now, says legal analyst

It’s important for families with loved ones on board Malaysia Airlines flight MH370 to have lawyers helping them from the beginning, as there are many complicated legal issues tied to the case, says a legal analyst for global news network CNN.

Danny Cevallos, who is also a criminal defence attorney and partner at Cevallos & Wong, said in a CNN opinion piece that the families would need all the help they could get to manoeuvre the legal complexities resulting from the Montreal Convention – an international treaty signed by 97 countries that addresses the liability of air carriers in international flights.

"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 a 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 US court," he said the opinion piece.

The convention contains strict limitations on the time in which a claim may be brought. It holds a carrier strictly liable in the approximate amount of US$175,000 (about RM568,000) per passenger in the case of an "accident".

However, if a plaintiff was seeking an amount in excess of the prescribed US$175,000, Cevallos said, the convention permitted the carrier to prove the damage was not because of its negligence or was solely because of the negligence of another party.

"So, the airlines may be able to legally minimise their loss to only US$175,000 per person if they can blame someone or something else," he said, adding that the bereaved families should not be required to litigate these complicated issues in court alone and should have lawyers 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," said Cevallos.

Cavellos said Boeing and Malaysia Airlines were legally obligated to minimise 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 v Goliath."

Cavellos said lawyers were the "safeguards of the republic" where they were the last bastion of defence for the populace against the government and large corporations.

He said during an extended stay in America, French political historian Alexis de Tocqueville had 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," Cavellos said.

He said lawyers, no doubt, stood to earn fees from contingent fee cases, but they also acquired all the risk and they stood to lose every penny they invested in a client if the case was 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," Cavellos said.

An aviation lawyer had recently expressed disgust at reports that scammers were targeting families of passengers on board Malaysia Airlines MH370 with fake compensation claims.

Floyd Wisner, from Chicago, the United States, who has represented passengers and families involved in previous air disasters, had said the families had been through enough over the past five weeks.

“It is shameful that any person would attempt to take advantage of people in this state of vulnerability, and I hope that law enforcement is investigating.

“This has been five weeks of hell for families, from misinformation to confused information, to lawyers making improper claims and now, scammers attempting to fleece them for money," he had said in a statement released in Singapore.

The attorney was referring to recent reports that a bogus email purportedly from Malaysia Airlines had been sent to families, requesting they contact a Malaysian bank to arrange compensation.

However, the email reportedly advised that "administrative charges" must be paid before funds were released.

Wisner said families should be aware that no fee should ever be required to access legitimate compensation and that they should “seek professional and experienced aviation counsel to protect their rights”.

He had also recently revealed that he had spoken to families of passengers who were forming a “families’ association” to present a united front and discuss their claims as a group.

It was earlier reported that some families had also approached a Chicago-based law firm to help them file a suit against the 777 aircraft manufacturer Boeing Co and Malaysia Airlines as they believe the plane had crashed because of mechanical failure.

The families – from China, Malaysia and Indonesia – had approached Ribbeck Law Chartered, which are aviation law experts, after the firm had filed a Petition for Discovery in the Circuit Court of Cook County, Illinois, on behalf of Dr Januari Siregar whose 25-year-old son was on board the MH370.

An Illinois judge, however, dismissed the law firm's motion to obtain evidence of possible design and manufacturing defects from Boeing and Malaysia Airlines.

Cook County judge Kathy Flanagan had also threatened to impose sanctions against Ribbeck Law Chartered, citing previous instances where the firm had "improperly brought" petitions, such as last year's Asiana Airlines plane crash in San Francisco.

"Despite these orders, the same law firm has proceeded, yet again, with the filing of the instant petition, knowing full well that there is no basis to do so," said Flanagan.

"Should this law firm choose to do so, the court will impose sanctions on its own motion."

The firm had said at the time it expected to represent families of more than half of the passengers on board the missing flight, which may have crashed in the remote southern Indian Ocean with all 239 on board presumed dead.

Several American aviation lawyers and experts called the Ribbeck filing premature and a publicity stunt, since the details of the plane's disappearance were still largely unknown. – April 16, 2014.