April 26, 2019

What To Think About When the Unthinkable Happens

The purpose of airports, airplanes and hotels is to provide transportation and accommodations. The mission of schools and churches is to provide places for children and congregants to learn and worship. And restaurants and concert arenas are where friends and families gather together to have a good time. But all of these places have also been the target of horrific acts of violence, mass shootings and terrorist attacks.

We live in an environment where social media and 24/7 news cycles can make it seem that the scene of the attack has suddenly become fishbowl.

When the unthinkable happens, those who manage the foregoing (if they are lucky enough to survive) are suddenly confronted with waves of grief, anger, glaring media focus and as time goes on, an intense period of investigation to find out what could have been done to prevent these attacks. And if a perception of fault is formed, there can also be unthinkable reputational and legal consequences.

Responding to these types of incidents requires organizations to deal with a wide array of subjects which are far removed from the purpose for which they exist. Given the potential consequences, it is essential that they seek experienced advice and assistance regarding emergency response, victim assistance, insurance coverage, investigatory cooperation, legal representation and media communication. In addition to the foregoing, it is essential that the organization be compassionate and ever mindful of what victims and survivors are going through.

The lawyers at Clyde & Co have rendered assistance and advice in all these areas during the course of providing representation around the globe. Our clients include schools, churches, airlines and concert venues that have been the subject of highly publicized attacks ranging from the 9/11 terrorist attacks to mass shootings by deranged individuals. We have learned that whenever such a tragedy strikes, our role is multi-purposed. 

The first thing we recommend to our clients is always the same. First and foremost, victims and their families need support. If an organization is unfamiliar with how to provide some, we have a list of companies and organizations that can assist and provide the support that victims and their families need. 

The second and equally important task is to provide support to employees who are either in shock about what happened or too consumed trying to help others that they fail to realize the traumatic impact that they may have suffered. Sometimes the impact may not be immediately recognized so putting in place a protocol that allows employees to deal with these issues over time is something that we are familiar with and able to implement as needed.

Beyond these initial and immediate needs, it is important from a reputational and risk perspective to understand that we live in an environment where social media and 24/7 news cycles can make it seem that the scene of the attack has suddenly become fishbowl. With the benefit of 20/20 hindsight, many so called “experts,” with no real knowledge of the organization or the details of what just occurred, nonetheless offer their views on what happened and what could have been done to prevent the attack. Couple that with the grief that victims and their families sometimes channel into anger and an organization which has built a stellar reputation can suddenly watch it vanish right before their eyes and the eyes of the world.

While no two events are ever precisely the same, it is our experience that organizations and employees need to be assured that the “fault” for these types of horrific attacks lies with those who perpetrate them. It is important to remember that we live in a society where every public space and gathering represents a target for those intent on causing maximum harm. Does that mean that every organization or business which provides a gathering place for the public at large, no matter how big or small, must implement security measures that can stop all forms of potential attack? We don’t think that the law or societal mores require such measures. 

Organizations impacted by these events need to understand where actual fault lies and to be assisted by respected individuals capable of communicating this fact to media and the public at large. We frequently work with such individuals and can recommend and assist in identifying information that can provide the appropriate context for the tragedy that occurred. That information will, of course, become more detailed as time goes by and in that regard, it is important to let the facts develop as the investigation unfolds. 

Cooperation with investigatory authorities is morally and practically necessary and must be given an equal footing with all the other issues being addressed. Events like this almost always result in one or more reports issued by governmental bodies. While the specter of politics entering into such reports cannot be ignored, we have found that cooperating from the outset gains trust and allows one to provide context and facts that will have an impact on the overall conclusions reached. We have dealt with high profile inquiries in this area and found that this approach has resulted in a relatively balanced report.

In addition to the foregoing, an organization that has been the target of an attack must be cognizant of the prospect of litigation. Our vast global experience in this area has taught us that insurers must be immediately put on notice and a spirit of cooperation developed to define coverages and the types of claims that may be presented. We have litigated these types of claims on a global scale and understand the needs of insurers and insureds in responding to these types of claims and the need to formulate as soon as practicable the appropriate legal arguments.

In our opinion, the core of such arguments almost always involves the legal concepts of foreseeability, duty and proximate causation. We also understand that these arguments must be supported by substantive experts with stellar credentials and credibility. We are well versed with the foregoing and have worked with subject matter experts who can appropriately communicate the key elements of the arguments that are identified. We similarly understand and pride ourselves in effectively presenting these arguments to a court in a respectful but effective manner, keeping in mind the key mission of the organizations that we represent.

While we truly hope that no such future attacks occur, we stand ready to assist any organization that has experienced such a horrific attack or any organization that wishes to engage in contingency planning. Knowing what to expect and having confidence in those who represent you helps you manage the aftermath of this type of tragedy in a way that respects the loss suffered by the victims, provides support for employees and effectively communicates to investigators, media and the courts, the appropriate context in which these events must be examined.

 

Jeff Ellis is a partner at Clyde and Co. based in the US. He has represented the interest of parties targeted in the 9/11 attacks, the Underwear Bomber, Lockerbie, mass shootings and numerous other types of security based claims. In conjunction with same, he has represented parties before the 9/11 Commission as well as state, local and national investigatory bodies. His colleagues at Clyde have represented parties in mass shootings, bombings and other targeted attacks at various types of venues as well as having represented police and other governmental bodies involved in such attacks. In conjunction with the foregoing, we work closely with numerous ex-governmental and subject matter experts.