Another GA lawsuite

Are we sure the family is suing the FAA? It's hard to believe since the
Federal Govt typically hides from lawsuits under qualified immunity or some
such principle.

My guess is this case will be thrown out in a summary judgement.

-Brian
N33431
Iowa City, IA

"Icebound" wrote in message
le.rogers.com...
James M. Knox wrote:
...

Probably the fact that the NTSB conclusions can not be admitted to court
for the lawsuit. ...

Does this mean, that to produce a complete defense, the FAA would have
to, in effect, re-create the NTSB investigation for the court???
Calling in the mechanical inspectors, controllers, ground witnesses,
etc., all over again???

"Brian Sponcil" wrote in message
...

Are we sure the family is suing the FAA? It's hard to believe since the
Federal Govt typically hides from lawsuits under qualified immunity or
some
such principle.

My guess is this case will be thrown out in a summary judgement.

That would be my guess too, or he could wait until the plaintiff rests his
case.


-Brian
N33431
Iowa City, IA

"Icebound" wrote in message
le.rogers.com...
James M. Knox wrote:
...

Probably the fact that the NTSB conclusions can not be admitted to
court
for the lawsuit. ...

Does this mean, that to produce a complete defense, the FAA would have
to, in effect, re-create the NTSB investigation for the court???
Calling in the mechanical inspectors, controllers, ground witnesses,
etc., all over again???

FAA would have to, in effect, re-create the NTSB investigation for
the court???

NTSB factual statements are admissible; conclusions are not.
(According to NTSB people.)

Icebound wrote in message ble.rogers.com...
James M. Knox wrote:
...

Probably the fact that the NTSB conclusions can not be admitted to court
for the lawsuit. ...

Does this mean, that to produce a complete defense, the FAA would have
to, in effect, re-create the NTSB investigation for the court???
Calling in the mechanical inspectors, controllers, ground witnesses,
etc., all over again???

Essentially, yes; where the investigators, witnesses, etc can be cross
examined, and their conclusions examined under stricter standards.

"James M. Knox" wrote in message
...
Kevin wrote in newsr2yb.253469$275.925372@attbi_s53:

NTSB Identification: NYC01FA040 . The docket is stored in the (offline)

The pilots family is suing the FAA for wrongful death. This report
clearly indicates the pilot was at fault. Inexperienced in IMC and flew
it into the ground. What am I missing here?

Probably the fact that the NTSB conclusions can not be admitted to court
for the lawsuit. So it's just a matter of what an attorney can convince
the jury of that *might* have happened.

Not true. Provided the judge allows such a case to go to the jury, the
jury must be convinced by the greater weight of the evidence that the
defendant owed a specific duty of care to the plaintiff, that the duty was
breached, and that the breach proximately caused the plaintiff's damages.


Doesn't have to prove that his
scenario DID happen, just that it might have.

This is a misstatement of the law. It is misleading. "Might" have could
mean a 1 in 3 chance, which is insufficient to get the case to the jury.


-----------------------------------------------
James M. Knox
TriSoft ph 512-385-0316
1109-A Shady Lane fax 512-366-4331
Austin, Tx 78721
-----------------------------------------------

"Larry Smith" wrote:

"Might" have could mean a 1 in 3 chance, which
is insufficient to get the case to the jury.

I'm puzzled by this statement. As I understand it, the burden of proof for
civil cases is the balance of probabilities, so if there's better than a 1
in 2 chance that things are as the plaintiff claims, then his case is made.
But you appear to be saying that a similar test will be applied to establish
whether the case would even come before a jury, which seems a awfully high
hurdle for a civil case. I know that some criminal cases have to meet this
test in preliminary hearings, but that makes sense, as the burden of proof
in the case is much higher ie. beyond a reasonable doubt. I thought you
could only get a civil case struck out (and thereby prevent it coming before
the jury) if you could show that the case has no chance of succeeding even
if all the facts fall so as to favor the plaintiff? I'm not a lawyer, so I
could easily be 100% wrong here, but I'd welcome some clarification so I
might better understand the procedures involved.

--
Mike Granby, PP-ASEL,IA
Warrior N44578
http://www.mikeg.net/plane

"Mike Granby" wrote in message
...
"Larry Smith" wrote:

"Might" have could mean a 1 in 3 chance, which
is insufficient to get the case to the jury.

I'm puzzled by this statement. As I understand it, the burden of proof for
civil cases is the balance of probabilities,

Correct. Proof by the greater weight of the evidence, or a preponderance of
the evidence, or by tipping the scales in favor of the plaintiff.

so if there's better than a 1
in 2 chance that things are as the plaintiff claims, then his case is
made.
But you appear to be saying that a similar test will be applied to
establish
whether the case would even come before a jury, which seems a awfully high
hurdle for a civil case.

Usually judges let even flimsy cases go to the jury but if the plaintiff is
playing with 33% of the marbles and the defendant has 67%, the judge will
step in and dismiss sooner or later. That's my experience, even though the
judge waits until ALL the evidence is in, or even until after a verdict for
the plaintiff.

The rule, at the end of the plaintiff's evidence and upon motion to dismiss
by the defendant, is that if the plaintiff has failed to show evidence of
each of the elements of his case, he is subject to dismissal. The court,
if it finds by considering the evidence in the light most favorable to the
plaintiff that the plaintiff has failed to establish he is entitled to
relief, may enter an order of dismissal against the plaintiff.

So let's assume that each of the plaintiff's witnesses testifies that X
could have occurred or might have occurred, instead of saying that it in
fact DID occur, you won't get THAT to the jury.

I know that some criminal cases have to meet this
test in preliminary hearings, but that makes sense, as the burden of proof
in the case is much higher ie. beyond a reasonable doubt. I thought you
could only get a civil case struck out (and thereby prevent it coming
before
the jury) if you could show that the case has no chance of succeeding even
if all the facts fall so as to favor the plaintiff?

The point is that a plaintiff must affirmatively produce evidence to support
his allegations sounding in tort against the FAA by competent evidence.
When a judge dismisses at the end of the plaintiff's evidence, and he does
it quite often in my neck of the woods, it's not only because the
plaintiff's case has suffered a fatal flaw in an element of proof but also
because his evidence preponderates against a verdict any jury might award
him.

There are a whole battery of motions a plaintiff must withstand before he
collects, and his case had better be better than "might have occurred" or he
ain't going to collect. This law isn't so much written in the books as it
is in the history of lawyering.

I'm not a lawyer,
I'm not either. I quit practicing some time ago. But I tried quite a few
jury cases in civil and criminal courts, and it's not like rolling dice or
showing that a state of facts may have existed.

so I
could easily be 100% wrong here, but I'd welcome some clarification so I
might better understand the procedures involved.
I believe you have a good grasp of what it takes to get past an order of
dismissal and get the case to the jury. Plus you have a good grasp of the
difference in the burden of proof in a civil case and a criminal case.
--
Mike Granby, PP-ASEL,IA
Warrior N44578
http://www.mikeg.net/plane

"Larry Smith" wrote:

[Much interesting stuff]

Thanks for this, Larry. One final question... When you talk about the judge
dismissing at the end of the plaintiff's case, is this in front of the jury?
Or is there some preliminary hearing first? I was reading your "getting to
the jury" as referring to presenting the case (or part thereof) to a jury,
whereas rereading it, it could also mean getting to the jury for
consideration.

--
Mike Granby, PP-ASEL,IA
Warrior N44578
http://www.mikeg.net/plane

"Larry Smith" wrote in message ...
....
Usually judges let even flimsy cases go to the jury but if the plaintiff is
playing with 33% of the marbles and the defendant has 67%, the judge will
step in and dismiss sooner or later. That's my experience, even though the
judge waits until ALL the evidence is in, or even until after a verdict for
the plaintiff.

As a practicing plaintiff's lawyer, I appreciate your "defense" of
the plaintiff's burden of proof. However, to be fair, in real life
the judges are loath to dismiss a case once the trial begins. Even if
the plaintiff has 33% of the marbles and the defendant has 67%, the
judge will (in fact, should) let the case go to the jury. That is why
we try cases to juries, rather than just judges. Although the judge
can reject a jury's verdict, it is EXTREMELY rare,at least on
liability. Although it happens, it is virtually anecdotal.


The rule, at the end of the plaintiff's evidence and upon motion to dismiss
by the defendant, is that if the plaintiff has failed to show evidence of
each of the elements of his case, he is subject to dismissal.

If this were the case, it would already have been dismissed at the
summary judgement stage (ie, "thrown out of court").

The court, if it finds by considering the evidence in the light most
favorable to the plaintiff that the plaintiff has failed to establish
he is entitled to relief, may enter an order of dismissal against the
plaintiff.
So let's assume that each of the plaintiff's witnesses testifies that
X
could have occurred or might have occurred, instead of saying that it in
fact DID occur, you won't get THAT to the jury.

I agree that the plaintiff's witnesses can't win the day by saying
that it "could have" or "might have" occured this way. However, they
need only say that it "more probably than not" happened this way.
They do not need to say that it "did" happen this way.

I know that some criminal cases have to meet this
test in preliminary hearings, but that makes sense, as the burden of proof
in the case is much higher ie. beyond a reasonable doubt. I thought you
could only get a civil case struck out (and thereby prevent it coming
before
the jury) if you could show that the case has no chance of succeeding even
if all the facts fall so as to favor the plaintiff?

The point is that a plaintiff must affirmatively produce evidence to support
his allegations sounding in tort against the FAA by competent evidence.
When a judge dismisses at the end of the plaintiff's evidence, and he does
it quite often in my neck of the woods, it's not only because the
plaintiff's case has suffered a fatal flaw in an element of proof but also
because his evidence preponderates against a verdict any jury might award
him.

I agree 100%.

There are a whole battery of motions a plaintiff must withstand before he
collects, and his case had better be better than "might have occurred" or he
ain't going to collect. This law isn't so much written in the books as it
is in the history of lawyering.

Again, I agree 100%.

I'm not a lawyer,
I'm not either. I quit practicing some time ago. But I tried quite a few
jury cases in civil and criminal courts, and it's not like rolling dice or
showing that a state of facts may have existed.

so I
could easily be 100% wrong here, but I'd welcome some clarification so I
might better understand the procedures involved.
I believe you have a good grasp of what it takes to get past an order of
dismissal and get the case to the jury. Plus you have a good grasp of the
difference in the burden of proof in a civil case and a criminal case.
--
Mike Granby, PP-ASEL,IA
Warrior N44578
http://www.mikeg.net/plane

"James M. Knox" wrote in message ...

.... So it's just a matter of what an attorney can convince
the jury of that *might* have happened. Doesn't have to prove that his
scenario DID happen, just that it might have.


Actually, proving that it "might have happened" won't do. He has to
prove "by a preponderance of the evidence that it is more likely than
not" that it did happen.