Recently, the single largest lawsuit in the entire history of human civilization has been filed by some of the victims of the September 11th terrorist attacks, and some members of some of the surviving families, against the Republic of Sudan and several entities resident in Saudi Arabia, for damages totaling roughly US$One-Trillion (US$1,000,000,000,000). Most of the discussion revolving around the suit, up to this point, has been political in nature. Further, the discussion up to this point has been filled with glaring inaccuracies, and has resulted in yet another public relations disaster for the Kingdom of Saudi Arabia.
Rather than treating this situation as a political problem, it might be better to deal with the lawsuit as being exactly what it is, a lawsuit.
Certainly, the defendants would be better-off if the suit were tackled from a legal perspective. As a legal matter, the suit should be taken seriously: Litigation, especially in the United States, is a long, expensive process which comes as close to war as private individuals and corporations (rather than governments) can engage in, without actually using deadly physical force. Once a defendant has been served with valid notice of the suit, it is the equivalent of a declaration of a state of war between the parties. This is not meant to over-dramatize the situation. It is merely the most accurate analogy at hand to describe the nature of a lawsuit. However, beyond that, the reputation of the Kingdom and its citizens might benefit from such an approach as well.
Such a trial would not be, as unnamed Saudi lawyers were quoted as saying, “worthless and ineffective”, on the grounds that the named defendants in the civil suit had not been convicted in a criminal court of the charges (published in Arab News, August 19, 2002, page 2). In the United States, the standard of proof required to convict someone in a criminal court is much higher than what is required to show liability in a civil court. The OJ Simpson case is the most famous of the recent cases that demonstrate this point (Simpson was acquitted of charges alleging the murders of his ex-wife and her friend, but was found liable for the wrongful deaths of the same two people when sued by family members of the victims in civil court).
No. If this case makes it to trial, the defendants should already have a game plan in place, or they are going to get crushed: The attorneys for the plaintiffs are serious and seasoned trial attorneys with successful track records who have won, literally, billions of US dollars for their clients. Walking into a courtroom shouting, “This is not a Saudi Court, and I refuse to recognize its authority”, or “This is not justice, but a Zionist Conspiracy”, or, my favorite, “What about the Palestinians!!!” are not viable legal defenses, and anyone who relies on anything of the sort is going to have to write a very large check after the court renders its verdict and awards a judgment.
Regardless of the exact details of any game plan for the litigation, the defendants should, at all times, refrain from issuing verbal attacks against the plaintiffs themselves, whether in court, or in the press. Keep in mind exactly who the plaintiffs are: The sons, daughters, husbands, fathers, wives, mothers, grandparents and grandchildren of the victims of the most disgusting and cowardly attack ever perpetrated against the United States. To verbally assault them is, in the mind’s eye of the average American, to sympathize with the terrorists who committed the act and to take black joy in recalling their ungodly “accomplishment”.
To be anything other than sympathetic with the victims of September 11th is an awful courtroom strategy that will create yet another public relations disaster. Furthermore, and worst or all, such a lack of sympathy is utterly inhuman.
By the same token, do not confuse the plaintiffs with the United States of America. This action has not been filed by the American government, and the United States herself is not a party to the litigation. Further, there is nothing the United States herself can do to unilaterally halt the case. In the United States, the Judiciary, with the appropriate checks and balances on its powers in place, is distinct from, and independent of, the other branches of government. To proceed on the assumption that the Executive Branch of the United States government instigated these proceedings and/or can stop them on a dime, is a poor strategy from both a legal and public relations perspective, and will do more harm than good to US-Saudi relations, generally.
When someone is sued, the first response, usually, is to simply settle out of court. In fact, the vast majority of cases filed in the United States Federal Courts are settled. However, no less than eighty (80) of the original plaintiffs have broken from the suit and are seeking different legal counsel for the purpose of filing a separate suit. These 80 original plaintiffs claim they are seeking separate representation in response to what they say have been unauthorized overtures by plaintiffs’ counsel to seek an out-of-court settlement. In short, even setting aside the huge amount of money in controversy and the problematic issue of how to word the statements included by the defendants in any documents pertaining to a settlement, this case is not likely to be settled outside of court.
So, assuming that this case will proceed to the bitter end, one analysis that might be useful is one which tackles the question of jurisdiction. That is to say, does the court have the power to hear this case? In the United States, it is not a given that a court can hear a case simply because it was filed there. In order for a court to hear a case, one requires both Personal Jurisdiction and Subject Matter Jurisdiction.
The Federal Rules of Civil Procedure would be a good place to start in one’s research on this aspect of the suit. One might also wish to look at the Patriot Act (2001), the statute that “enables” the plaintiff’s case, and compare it to available materials on U.S. Constitutional Law. There is also a question of who should be given the “first bite of the apple” in cases wherein one is accused of supporting terrorism: the civil courts, the criminal courts, or special military tribunals?
If the necessary tests are met to establish jurisdiction, preliminary motions and the discovery process, an arduous process wherein information is requested by and gathered from the various parties, will probably dominate the litigation for the next few years. Discovery will, most likely, pose a larger problem for the defendants than the plaintiffs (after all, what documents could the defendants ask for from the plaintiffs, death certificates? What would you ask a given plaintiff in a deposition, does he/she really miss his/her deceased loved one? In fact, it may be possible that a large percentage of the number of the discovery requests issued by the defendants will be issued to other defendants).
Given the broad and vague nature of the accusations listed in the complaint against many of the defendants, the discovery process, as pursued by the plaintiffs, might look much like a strip mining operation. There is, of course, a benefit for the defendants, and Saudi Arabia as a whole, as a result of this process, and the suit generally. These benefits will be outlined below.
Naturally, with all of the information necessary for the parties to present their respective cases having been gathered, there is the trial itself. A question one might ask is, should this be a jury trial? The plaintiffs, in their complaint, demand a jury trial. Unlike a criminal case, in a civil action for injury filed in Federal court, this is enough to bind all of the parties to a jury trial, whether the defendants desire one or not. Therefore, from the onset, we know that, should this case go to trial, it will be a jury trial, rather than a bench trial.
As regards the trial itself, part of a viable plan might be to look at the defendants themselves, and then look at the nature of the suit. Some of these defendants have close ties to the national security community in the United States, and the subject matter of this case deals directly with the national security of the United States. Without giving too much away here, this could possibly complicate the presentation of the plaintiffs’ respective cases.
The core of the defendants’ respective approaches to this matter, however, should rest on the facts themselves. Generally, no one should know the facts of a given case better than the defendant(s). In this particular case, records of financial transactions are, primarily, in the hands of the defendants. The defendants know what those records show, what those records mean, and why those records contain whatever it is they contain. Explaining this to a court should pose no problem for them.
What may pose a problem for the defendants, is presenting a unified front. Some of the named defendants are going to have inherent conflicts of interest with others listed in the complaint. Corporations are going to have conflicts with those associated with these corporations, who have been named by the complaint in their personal capacity as individuals, and vise versa. Those who have donated to charitable organizations are going to have conflicts with the charities themselves. And on it goes.
Then, there may be some parties who have no provable connection with their fellow defendants. Those parties, at the discretion of the judge hearing the case, may wish to sever their cases from the original trial in order to avoid the prejudice that might result from being tried alongside some of the other named defendants. The implications drawn by the U.S. media about the other defendants in the wake of such a motion should be obvious.
Altogether, the potential of conflict between the defendants themselves stands to create a public relations disaster of a nature which differs from previous disasters: One wherein Saudis start pointing their fingers at each other. For this, and other, reasons, it is advisable that the defendants each retain public relations firms based in the United States, with a special knowledge of, and interest in, the Middle East generally, and Saudi Arabia specifically.
This brings us, as promised, to the benefit this case has for the defendants: As ridiculous as it may be to accuse every human being in the entire nation of Saudi Arabia of supporting terrorism, it is equally ridiculous to claim that there is absolutely no one in the Kingdom who supports terrorism. In fact, it is difficult to conceive of any country wherein there is an absence of at least a small handful of terrorists, hiding like cockroaches. In the United States, for example, we had Timothy McVeigh (and, probably still have a few others).
In the American system of litigation, very little in the way of relevant information goes unnoticed. Should this case be one which is fought-out to the bitter end, mountains of information will have been made available to the public by the time the litigation ends.
In short, if their respective cases are presented before the court properly, this suit is an excellent opportunity for those who have never knowingly or negligently provided their support to terrorists to repair their good names and restore their once sterling reputations, especially their reputations in the United States, once and for all. Conversely, for Saudi Arabia, it is an opportunity to expunge from its society those who might be hiding behind a cloak of respectability and a veil of corporate paperwork, who protect their reputations at the expense of the reputation of their entire country, as well as the reputation of the Islamic world as a whole.
If the respective cases of the defendants are presented in a fashion similar to what has been written on their behalf in the press recently, then some of these defendants may spend the foreseeable future hiding assets in this place and that around the globe. Worse than that, however, might be a result wherein Saudi Arabia misses-out on a golden opportunity to rehabilitate its image in the West. In fact, beyond failing to make the most of such an opportunity, a less than meticulous legal approach to this suit might actually make even more headway in destroying the already damaged reputation of the Kingdom, and its citizens, in the mind’s eye of the American public.
Robert Jason Huf is an attorney, currently acting as a consultant for The Law Firm of Dr. Khalid Alnowaiser, which is headquartered in Jeddah, Saudi Arabia. Mr. Huf welcomes responses to this article, and can be reached through his e-mail address at:
The following is only general information, and is not to be construed as, or mistaken for, legal advice. Mr. Huf and/or the Law Firm of Dr. Khalid Alnowaiser will not be held responsible or liable, either directly or indirectly, for any mistakes contained therein.
Mr. Huf gratefully acknowledges the contribution of Mr. Alan L. Baron, a Partner in the law firm of Dorsey and Whitney and a leading attorney in Washington, DC, USA, who specializes in Complex Civil Litigation and White Collar Criminal Defense Cases. In writing this article, Mr. Huf had the pleasure of consulting with Mr. Baron, who will not be held responsible or liable, either directly or indirectly, for any mistakes contained in this article (see, first paragraph of the above).
(Please note, between the time this article was submitted, and the time this article was published, a 2nd lawsuit was filed in Lower Manhattan by roughly 1400 9/11 victims.)