Wednesday, January 5, 2000


While no definitive answer to the tragedy of Egyptair 990 is yet available, some facts are known, some are still under investigation and some won't be known until legal discovery is commenced.

It is known that the co-pilot was not intended to fly the aircraft for hours into the flight. It is known that for some reason just one-half hour into the flight he came to the cockpit and asked to fly sooner rather than later. It is known that the captain left the cockpit soon after and neglected to ask one of three other pilots to take his place. It is known that all aircraft operational parameters appeared normal at thirty-three thousand feet when, while by himself, the co-pilot apparently disconnected the autopilot and pushed forward on the control yoke, forcing the aircraft into a dive. It is known that the captain returned to the cockpit and asked, "What's going on?" It is known that before and apparently during the sequence the co-pilot recited a prayer, and during the descent the captain asked the co-pilot to pull back together with him to arrest the dive, but while he pulled the co-pilot pushed, resulting in a wild pitch-up and an in-flight breakup of the aircraft.

What is unknown is the "why" of all this. No one can reverse these events. No one can bring back our loved ones. The only task that remains is to heal, to investigate, to learn how this horrible event could have occurred, to prevent its reoccurrence, and to compensate the families, those who live for those who do not.
The investigative system under the NTSB is flawed. While the Egyptian Ambassador to the United States, admittedly with no air crash investigative background, was permitted to hear the cockpit voice recorder, the families will never have that right, as it is precluded by law. Lawyers who represent the families and their experts, however, will likely be afforded that right, but only after a judge in a court of law orders the release of the tape and only with restricted access.

The flight data recorder will be analyzed by the NTSB, which in the past has misread such data, and then it will likely be put into the airplane manufacturerís flight simulator, a simulator that has never been programmed to replicate such a violent flight profile of a B-767. In past investigations, the manufacturer has proved deliberately deceptive and misleading to Board investigators, hindering and delaying the early resolution of the accident's probable cause.

But for healing to begin, these questions must be answered now, not years from now. The only way to get them answered is to commence litigation now. The only way the cockpit voice recorder will be released is to commence litigation now. The only way for the flight data recorder information to be released in a timely way is to commence litigation now.

It sounds aggressive to suggest litigation only weeks after the accident took 217 lives, but the litigation following the crash of United 585 in Colorado Springs in 1991 ended in 1998, the litigation following the crash of USAir 427 in Pittsburgh in 1994 continues to this day, as does TWA 800 which crashed in 1996, and American 965 which crashed in Cali, Colombia, as well as many others. Time is on the side of the defense, documents will be "lost", memories will fade, witnesses will disappear, and worse, the official investigation will drone on, dancing to the tune of the political winds of who complains the loudest about its direction and likely outcome. The only voices that are not heard by government are those who cry out for their loved ones.

Once litigation is commenced, a plaintiffs' steering committee will be formed. That committee will be charged with the task of proving who is liable for the crash. Only when that task commences in earnest will offers of settlement be forthcoming. It is of vital importance that only those lawyers who have the will, the wherewithal and the desire to get into that fight be selected for the steering committee. Too often in the past, lawyers who successfully marketed themselves to grieving families fell far short when it came to getting to the formidable job of working to create risk of an adverse verdict and, therefore, the desire on the part of airlines and the manufacturers of aircraft to settle to settle. Egyptair is a government owned airline. It, therefore, enjoys protections afforded by legislation (the Foreign Sovereign Immunities Act) designed to protect governments from liability. For example, there is no right to a jury trial against Egyptair. There is no right to punitive damages against Egyptair or its employees. Unless the law is changed by the United States Congress (now under consideration), the Death On The High Seas Act will serve to limit damages to only the pecuniary losses suffered by the families of those killed. That Act allows for recovery of only the financial losses directly attributable to the deaths, and not the real measure of life or the loss of it to be recovered. Egyptair must be persuaded to do the right thing and waive the application of these Acts and offer settlements to the grieving families consistent with their losses, not hide behind a patchwork of laws passed to deny compensation for the benefit of those who owe it. It will be the lawyers who accomplish this.

Hopefully the U.S. Congress will do its sworn duty and repeal the Death On The High Seas Act as it relates to aviation accidents. Hopefully the U.S. Congress will avoid the temptation to give into lobbyists and their millions in "contributions" and for once do the right thing for the people, you know the people who elected them.

Choosing the right lawyer, especially at this horrific time, is a task no one should have to make, but it is so important. You must summon the energy to make the right choice. Here are some important considerations:
  1. The lawyer you choose must have aviation litigation experience. Without it, he will simply not know the players, procedures, or critical steps necessary to get the process started.
  2. The lawyer you select must be recognized in the field of air crash litigation and respected by both the plaintiffs' and defense lawyers as competent, skillful and honest. Without respect, nothing your lawyer says or does will advance your cause and get results.
  3. The lawyer you select should be a pilot who understands the language of aviation and can on his own conceive of and prove his theory of the accident in a court of law. Otherwise, the lawyer is at the mercy of hired experts alone, who often fail to understand the legal objectives of the case.
  4. The lawyer you select must be willing to work and have demonstrated that in past cases. Doing nothing until the trial date arrives and using the efforts of the lawyers who have done the work will result in those cases being left behind if the case actually goes to trial.
  5. Cheap is what you get. You want the job done in your lifetime? You want a lawyer to treat your case like he lost his own relative? Don't go for cheap, go for excellence. If a lawyer has fifty cases at a ten or fifteen percent fee, expect to wait until well into the next millennium before your case is resolved. Lawyers who are willing to work need to get paid more than that.
  6. Interview, interview, interview. Eyeball the lawyer who has your financial future in his hands. Do you like him? Do you respect him? Do you see and feel his concern over your welfare and that of your family? Is there compassion? If not, go elsewhere. Will he give you the name and phone number of a client who will vouch for his credentials, experience and compassion? If not, go elsewhere.
There is only one reason to interview The Wolk Law Firm, we do nothing but air crash litigation for plaintiffs. We specialize in a field that is a complex legal science and have for decades. We are pilots. We are scientists. We are lawyers who work. Every defense lawyer involved in aviation litigation and every plaintiffs lawyer in or out of the field respects us. We have settlements and verdicts that are among the largest ever recovered in aviation litigation. We have tried hundreds of cases in virtually every State. We treat every client like they are related. We have no dissatisfied clients, period! If you want to talk to a client, either current or past, that's easy because they are happy to do it for us and for you. If they can help ease your pain, just ask, whether you hire us or not. Every client from every crash over thirty-one years agrees with the way we do our job. If you give us the opportunity to be interviewed you will select The Wolk Law Firm.


Sunday, January 2, 2000


A Letter to U.S. Department of Transportation Dockets

August 24, 1999
U.S. Dept. of Transportation Dockets
Docket No. FAA-1999-6001
400 Seventh Street, S.W.
Room Plaza 401
Washington, DC 20590
Re: Docket No. FAA-1999-6001; Notice No. 99-14

I oppose the introduction of a regulation that would allow the Federal Aviation Administration to afford protection of voluntary submitted information.

The predicate for this regulation is that those persons who might provide the FAA with useful safety or security information won't do so if they are fearful that the information will be disclosed in response to a FOIA request. Historically, this has been demonstrated to be an entirely false assumption. The FAA has had in place a Service Difficulty Reporting System for at least forty years to my knowledge. Mechanics and others, without any compensation or hope for it, or any fear of the disclosure of this information, have provided the necessary safety information concerning the failure or near failure of aviation components that could affect flight safety for years. Unfortunately, they are frustrated because they recognize that year after year the information they have provided is not utilized by the FAA to improve aviation safety. Many mechanics I have spoken to have said that they stopped providing service difficulty reporting information because they see model after model of aircraft with no improvements and no changes and failing for the same reasons.

Thus, the paucity of information now provided to the FAA in connection with safety has nothing to do with fear of this information being disclosed under FOIA, it has to do with the disgust by the people who are responsible for providing such information with those who are responsible for using the information effectively to prevent accidents, i.e., the FAA. Thus, the basic predicate for the regulatory change is unfounded in fact.
Indeed, the FAA in response to pressure from manufacturers has refused to divulge information provided both by the manufacturers and those in the field on the basis that it is proprietary and confidential. Thus the FAA has effectively introduced, without regulatory authority for the same, the protection that it now hopes to introduce by way of a new regulatory scheme designed for one purpose and one purpose only preventing the public from knowing and obtaining access to safety information which has been previously withheld from them by both the Government and the private sector. That is the purpose of this rule, that is the thrust behind it, that is the reason it is introduced, and it is really so blatant that the FAA must really think the public are stupid by introducing a rule that is purportedly designed to enhance safety, but in reality is nothing more than an attempt to cover up the blunders of both the FAA and the industry with respect to aviation safety.
Indeed, even thought the FAA had no authority for it, even though the FAA kept from the public all the information concerning certification blunders (like the Boeing 737 rudder system), certification and safety blunders (like the lack of fire safety on all commercial aircraft wiring and insulation systems), and the list could go on and on, now the FAA wants to turn the Government into a secret repository of information that should be disclosed to the public anyway.

Why shouldn't the public know that an aircraft is unsafe, and then make a choice not to fly it? Why shouldn't the public know that there are failure rates of aircraft of such a magnitude they shouldn't buy or fly in it? Why shouldn't the public know that there are airlines not operating safely because they are conducting paper inspections and paper repairs? In short, what the aircraft manufacturers, the airlines and others want the FAA to do, and the FAA is falling all over itself to comply with, is to make everything a secret so nobody knows how bad it is out there and how badly the FAA is doing its job.

One example strikes me as being especially telling. I wrote a FOIA request, repeated FOIA requests as a matter of fact, arising out of the crashes of United 585 and USAir 427, two Boeing 737s that crashed because of the failure of the rudder servo valve, a probable cause found after nine years of investigation by the NTSB. Of course, the FAA in the State of Washington didn't have any information that it found releasable, and when we took the deposition of Ken Frye, the FAA person in charge, FAA's lawyers shut him down when we were asking sensitive certification questions. Of course, we didn't get the information from the defendants because they cited all sorts of reasons why the information was either unavailable, or they couldn't find it, or they couldn't supply it.

Well, something surfaced that was kind of remarkable, a copy of which I am providing to you, which are minutes of the certification meeting of the Boeing 737. Well, lo and behold, it turns out that the FAA did question the certification of this aircraft, the single slab rudder, the single actuator, and even suggested that it was prone to a single point failure. Well, it's pretty obvious that if this document had gotten out officially, it would have been pretty embarrassing to the FAA, and probably to the managers who overruled the guys who figured out that the 737 shouldn't have been certified this way, so it didn't get out officially, it got out unofficially.

That's the problem, you see, with your proposed regulation. Your proposed regulation is a simple attempt to hide the truth from the public, to hide the truth from victims' families, to hide the truth from the press, to hide the truth from everyone who has to make an intelligent decision about aviation safety.
In short, this regulation is a cruel and arrogant attempt to deny access to the public from the people who are on the public's payroll to find out whether the job for which Government is being paid is, in fact, being done honestly, accurately and effectively.

I oppose this regulation, because it has been bought and paid for by industry, because it is the FAA's continuing attempt to hide its ineptitude because it is completely and absolutely unnecessary.
Even the FAA should understand that it is the threat of public disclosure of critical safety information and the legal liability that may result from it that is the most effective tool at implementing aviation safety improvements, not hiding behind some regulatory device to keep the public in the dark.

Read the Constitution.

Very truly yours,