By Michael Singer
Edited by Sigalle Barness
You’re sitting at your desk when your phone rings. There’s been a tragic accident involving multiple fatalities somewhere in the transportation system. You determine a client is involved in some manner. You ponder the civil and/or criminal investigations, lawsuits and damages in the years to come. But, at the same time, if you’re really on your game, you realize your client may be a part of an investigation involving the National Transportation Safety Board (NTSB). You’ll want to know best how to advise your client as they embark on the NTSB investigative process. And if you don’t know where to start on, you won’t do better than Thomas W. Tobin’s (Wilson Elser Moskowitz Edelman & Dicker LLP) Lawline Industry presentation The Anatomy of a National Transportation Safety Board (NTSB) Investigation. In slightly over 90 minutes, Tobin explains just how this unique federal agency, familiar to all but understood by few, works.
“God on the scene”: As Tobin asserts from the outset, “Once you understand what motivates the NTSB, it’s a lot easier to work with them.” This unique, but ubiquitous, federal agency has complete independence. Its primary mission is not to assess blame, but to avoid the next accident resulting from the same cause. They do this by investigating the probable causes of accidents and issuing recommendations. With few exceptions (involving the FBI or U.S. Coast Guard) they have investigative priority over all other federal agencies at the scene of an accident. As Tobin observes, they are effectively “God on the scene.” Though this agency has no regulatory authority, 80% of their safety and remedial recommendations are adopted by industry and governments. They achieve this record of success via a reputation for thoroughness and effective use of the bully pulpit, using both traditional and social media to push the safety agenda. See e.g. the annual release of the agency’s “most wanted” list of safety enhancements.
Helping your clients and the NTSB, simultaneously. When the NTSB becomes involved in an accident, the agency will send a “Go-Team” to the accident scene, which will include an Investigator-in-Charge (IIC), to establish order, designate the parties and the coordinators for each party and divide all into investigative groups (for example, one group might investigate human activities involved in the accident; another, the mechanical aspects of the accident; still another, the event recorders, such as black boxes. A party can be a person, government agency, company, or association whose employees, functions, activities, or products were involved in the accident and can provide suitable qualified technical personnel to actively assist in the field investigation.
Once so designated, your client will have an opportunity to participate, via your coordinators, in the factual investigation. Doing so means your client will have an opportunity to shape the eventual NTSB factual findings.. An entity that becomes a party to an NTSB investigation must be fully committed to transparency, truth-finding, and rapid response. As an attorney, your focus is limiting client exposure. So for you, this process might seem at odds with your client’s legal position. If the NTSB asks for information, it wants the information now, not after you have had time to review and consider the liability consequences of releasing it. The upside is that the NTSB may make remedial recommendations during the investigation that could actually help your client avoid additional liability should a dangerous condition need to be corrected. As Tobin points out, he finds he is able to serve his clients and help the NTSB at the same time.
10 Things Your Client Needs to Do as a party to an NTSB investigation: Tobin’s review of the NTSB’s party system is invaluable listening; suffice to say that if your client is a party to an NTSB investigation, complete cooperation and transparency with the IIC and the various Group Chairs are obligatory—withholding information is forbidden and can result in public castigation, which will not help your client’s litigation position. Here are Tobin’s top ten recommendations for a party to an NTSB investigation to assist the agency and to help itself:
- Understand the responsibilities of the IIC and Group Chairs
- Keep copies of the documents you provide
- Respond swiftly, and make sure of accuracy of your responses
- Assume all communications with the NTSB will be public (because they are)
- Choose your party coordinator and specialists carefully
- Work closely with your coordinator and specialists
- Be open to opportunities for interim remedial action
- Vet the draft Field Notes and Group Factual Reports carefully (for accuracy)
- Prepare extensively for any public hearing (as if it were a trial)
- Submit Proposed Findings & Recommendations
In the end, everyone involved in the transportation system wants the unattainable goal of perfect safety. When that goal fails, as it ultimately does, working with the NTSB can be a great way to get back on track…or on the road again.