The National Law Journal

Mobile Response To Amtrak Crash

Local bar's disaster plan kept lawyers away from Amtrak crash victims.

By Claudia Maclachlan

National Law Journal Staff Reporter

MOBILE, Ala. -- Rescue workers on a pier close to the crash of Amtrak's Sunset Limited were just beginning to unload bodies pulled from the warm, murky waters of Bayou Canot when the president and three members of the Mobile County Bar Association arrived with their hands full of press releases.

Dispatched by the state bar and acting according to a carefully drafted disaster plan, their mission was noble -- to warn the victims of Amtrak's worst crash ever not to be duped by ambulance chasers or insurance adjusters.

But their plan backfired, and to their dismay, the attorneys found themselves cast as precisely the kinds of villains they were trying to oppose.

The next day's Mobile Press Register contained a story chronicling the Bar Association's visit under the headline: "Lawyers descend to provide 'relief,' but are turned away." A day later Bar President Thomas E. Bryant Jr. of Mobile's Bryant, Blacksher & Lester, was still fielding angry calls from Mobile residents, who accused him of ambulance chasing himself.

"We were not trying to sign up anybody," says an anguished Mr. Bryant, a probate lawyer with nearly 30 years in practice. "Yesterday was the longest day I ever spent in my life. Even the publisher says, tongue in cheek I guess, that he commends our efforts. We weren't there to solicit business. This was initiated at the state bar. I didn't go out there like a loose cannon."

In this respect the scene was after different from other mass disasters such as the chemical explosion in Bhopal, India, or the Dupont Plaza Hotel fire in San Juan, Puerto Rico, where victims were openly solicited by lawyers. "The bar got a terrible black eye at Bhopal," says Reginald T. Hamner, executive director of the Alabama State Bar.

Indeed, the Amtrak disaster is already attracting big-name plaintiffs' lawyers like Melvin M. Belli Sr. and John P. Coale. Still, Amtrak officials, bar officers and the Mobile police succeeded in throwing up a protective wall around the victims that was penetrated by very few lawyers or investigators, despite their best efforts.

Prosecutor Watchdog

The protection was deliberate and well-planned. Thinking it might have to respond one day to a hurricane, Alabama's state bar drew up its own mass disaster plan in 1991, Mr. Hamner says. The bar group hoped to emulate Iowa's state bar, which arrived in Sioux City shortly after a 1989 plane crash to prevent overt soliciting.

"We were trying to stop some of the unseemly behavior that had characterized other accidents," Mr. Hamner says. "The bar in Iowa took action and had marvelous results."

So when the Sunset Limited ran off its tracks on Sept. 22, Mr. Hamner and state bar President James R. Seale of Montgomery's Robison & Belser telephoned Mr. Bryant and sent him to the scene. "The idea is to alert persons in moments of stress that they do have legal rights, and that includes the right to make a decision in a moment of rational thought," Mr. Hamner says.

The county bar group even parked a member of its grievance committee -- Mobile County Deputy District Attorney Thomas E. Harrison -- in the lobby of the hotel where victims were taken to spot local lawyers and investigators trying to hustle clients.

Alabama's wrongful-death statute provides an added incentive for the plaintiffs' bar to sign up clients from the crash. A Mobile attorney says that the statute is designed to deter or punish the wrongdoer and carries a lower standard of proof -- straight negligence -- than in most states, which commonly require plaintiffs to prove reckless disregard or gross negligence.

But Mr. Harrison and his fellow grievance committee members also have a powerful weapon at hand -- Alabama's champerty law, which makes it a misdemeanor for lawyers to "employ or offer to employ" anyone to solicit legal business.

Punishment includes disbarment and six months at hard labor.

"Those investigators we have found will receive an invitation to appear before the Mobile Bar Association's grievance committee," he says.

Lobbying Survivors

Mr. Harrison, the prosecutor, was staked out in the lobby of the downtown Adam's Mark Hotel, which from the time of the crash was the center of the disaster relief effort. Amtrak had commandeered the waterfront hotel as a sort of an emergency headquarters, where passengers and their families could be housed, fed and counseled.

Railroad officials and local volunteers worked from makeshift desks in a sunken lounge in the center of the hotel's lobby, interviewing passengers and the families of the dead with police guards and signs saying "No Media" posted around them. The hotel also cordoned off meeting rooms and other sections of the building to provide privacy for the survivors. One plaintiffs' lawyer, noting that few passengers were ever more than an arm's length away from a railroad official, likened the setting to the French Bastille.

The tight security frustrated most attempts to solicit business at the hotel and drove what attempts there were underground. Mr. Harrison, who spent the four days immediately after the accident at the Adam's Mark, says he spotted more investigators than attorneys loitering in the hotel.

Some lawyers, operating well outside the purview of the Mobile Bar Association, sent investigators straight to the scene to take photographs; some mailed out brochures as soon as the names of survivors and the dead appeared in the media; and some called families offering their services.

Others, like the well-known Mr. Belli of San Francisco's Belli, Belli, Brown, Monzione, Fabbro & Zakaria, waited for passengers to call them.

"We have been contacted by some of the victims' families and by some local lawyers from whom the case is too big," says Edward Lozzi, a spokesman for Mr. Belli, who adds that as of a week after the crash the firm had not been retained.

Mr. Lozzi says the firm had not sent any investigators, adding that Mobile was probably full of investigators. "A lot of these investigators are freelancers," he says. "The top investigative firms go to work right away."

With 163 survivors and 47 dead, lawyers noted that there would be plenty of work and money to go around. One plaintiff's lawyer estimated the case would be worth at least $ 100 million.

Among the lawyers who would acknowledge sending investigators to Mobile were Mr. Coale of Washington, D.C.'s Coale, Allen & Van Susteren, who is one of the highest-profile mass-disaster lawyers in the country, and Wm. Earl Higginbotham of Jacksonville, Fla.'s Coker, Myers, Schickel, Cooper & Sorenson.

Mr. Coale says his investigators rented a boat so they could take photographs of the scene, which was inaccessible by road, and defended the move in light of his past experience.

"We found that a lot of the evidence we needed was being taken away at the Dupont Plaza fire, like the burned furniture," he says. "We needed the furniture," so the experts could track how and where the fire started. A lot of people will say that the National Transportation Safety Board is doing this [Mobile investigation], but their interests aren't the same as the plaintiffs."

Mr. Higginbotham, who specializes in railroad cases, says he wanted his own photographs in case the firm got any clients. "We routinely try to investigate things that might" produce clients, he says. "When you know there are major events, you try to preserve the scene, interview people . . . get copies of television coverage."

Mr. Higginbotham says he told his investigator, Richard Douberly, not to solicit any clients. A Florida man whose mother died in the crash, James Ferguson, says that Mr. Douberly offered to send him a copy of his investigative report, but did not directly solicit his business.

On the opposite side was Robert T. Cunningham Jr., one of the top plaintiffs' lawyers in Mobile. "We have four full-time investigators, and we instructed them not to go near the scene or anybody connected with it," says Mr. Cunningham at Cunningham, Bounds, Yance, Crowder & Brown. "There are at least five investigating agencies, from the NTSB on down to local groups. There is not much a private investigator is going to find by showing up at the scene."

Mr. Cunningham says offers to provide people with investigative reports are merely thinly disguised attempts to solicit business.

"We personally find repulsive what we read in the media about lawyers who show up at the scene and solicit business," Mr. Cunningham says.

Slipping Through the Net

Despite the tight security, some investigators managed to slip their business cards into the hands of passengers. One investigator from New Orleans, who would identify himself only as Mr. Lofton, got two Spanish-speaking passengers to sign papers, apparently agreeing to hire a sole practitioner in New Orleans named John J. Sullivan. Mr. Sullivan could not be reached for comment despite repeated calls.

Thomas Bueno of Mexico, who got on the train in El Paso, Texas, to go to a migrant farm job in Live Oak, Fla., says he met Mr. Lofton in the lobby of the Adam's Mark a day after the accident. Mr. Bueno barely survived the crash and was among several men who helped wrest open an emergency window and pull or push at least a dozen fellow passengers to safety.

"He said he would send me to the doctor to see if there was something wrong with me," Mr. Bueno says, pulling from his wallet a business card with Mr. Sullivan's name, address and telephone number printed on one side and Mr. Lofton's name and number written by the investigator on the back.

Mr. Bueno says he took Mr. Lofton upstairs to the hotel room of another passenger, Raymond Murillo of New Mexico, who had been his seatmate on the train. Mr. Murillo had just gotten out of the hospital, where he was treated for lung congestion because he swallowed so much water trying to get out of his train car.

"He asked me lots and lots of questions," Mr. Murillo says. "I don't know what I signed," he says. Neither man was given a copy of the papers he signed.

Mr. Murillo's sister, Priscilla Seymore of Boston, says she was angry that her brother had been solicited so soon after coming out of the hospital and that he had no copy of what he signed. "I think they should wait a while before anyone talks to survivors," Ms. Seymore says. "Right now they're still in shock."

Mr. Lofton, reached in New Orleans, says that Mr. Bueno and Mr. Murillo "were standing down there in a daze," in the Adam's Mark lobby. "I don't think it was right. These people needed help. There were people of all nationalities there and they didn't know what to do," he says.

"They needed an attorney, and gave them [Mr. Sullivan's] card because he is a friend of mine. I don't know what they signed," Mr. Lofton says.

Both Mr. Higginbotham and Mr. Coale complained that ethical restraints were placed on plaintiffs' lawyers, but not on Amtrak or CSX Corp. of Richmond, Va., which owned the bridge, and which will undoubtedly be sued. In fact, Amtrak was responsible for taking care of most of the people who eventually will sue the railroad.

"I think it's unfair to ignore the fact that the very people you may have claims against, the railroad, are responsible for ferrying people to the hotel," Mr. Higginbotham says. "It just seems there is an imbalance."

Mr. Coale says the local bar went overboard in trying to seal off contact between lawyers and passengers, and pointed out that Amtrak and CSX would have its lawyers at work on the case right away.

"These people do need lawyers," he says.