I was recently contacted by a writer for ABA Journal, the magazine of the American Bar Association. Her assignment is to write a story about the foreseeability of crowd crush issues, a hot topic even for non-event professionals since last November’s Astroworld festival disaster, and one that now arises frequently among the leaders of both the Event Safety Alliance (entering our second decade of putting “life safety first”) and the Global Crowd Management Alliance.
As much as I would like to be quoted as a subject matter expert in a prestigious publication – since I am an expert in this particular subject matter – I passed. As I have written before, I remain committed to the foundational legal notion that evidence must precede judgment, not the other way around. (Props to my Boston College Law School professors, who taught me well.)
But I don’t like to blow off people who ask nicely. So I suggested a way this writer could say something useful that would not require prejudging evidence. Here is what I wrote.
If you must write a story about the applicable law at this very early juncture in what promises to be years of litigation, why not talk about mass tort cases generally? Contextualize the legal process rather than trying to discuss a factually-complex matter whose facts are not yet known. That seems like a more manageable task with some nice resources available. There is an excellent book called Killer Show by John Barylick, who headed the plaintiffs’ steering committee in The Station nightclub fire litigation. You could explain how mass tort cases like Astroworld differ from class action litigation, how the cases get consolidated before one judge for discovery purposes and the challenges and benefits that can create, and the importance for case resolution of developing damages matrices (see Worth, a compelling 2020 movie about Ken Feinberg on Netflix, starring Michael Keaton and Stanley Tucci). You can discuss the likelihood that the Astroworld cases will settle in the context of mass tort cases almost always settling, as has been true forever (see A Civil Action, a dense but fascinating book by Jonathan Harr made into a surprisingly good 1998 movie starring John Travolta and Robert Duvall). In other words, rather than trying to explain a lawsuit at its earliest stages when no one really knows anything, better to put this sort of lawsuit in its historical and legal context.
Let’s unpack this a bit.
Mass Torts versus Class Actions
Although there are hundreds of plaintiffs suing for damages allegedly related to the Astroworld festival, In Re: Astroworld Festival Litigation is not a “class action” case. Instead, it is a mass tort action. There are procedural differences that can get pretty technical, but the gist at this early stage is that all of the individual litigants are represented by their own lawyers, who must work together on “steering committees” of plaintiffs and defendants, and all of the lawsuits are overseen by one Harris County, Texas judge in Houston. This is mostly for efficiency, so parties can answer questions and produce documents once, not hundreds of times.
This collective legal work is typical in cases with many parties that do not qualify as class actions. An example in the event industry was the civil litigation after the February 13, 2002 fire at The Station nightclub in Rhode Island. One of the leading plaintiffs’ lawyers in that case, John Barylick, wrote a gripping and informative book about the incident’s perpetrators, its many victims, and the resulting litigation. I assign Killer Show to my law students whenever I teach.
Damages Matrices
When lots of people demand compensation from a finite number of dollars, there must be a system to set the value of each victim’s loss. This, too, is a process that long predates Astroworld. Attorney Ken Feinberg made his reputation as someone who could establish fair criteria for individual losses in the lawsuits that followed the September 11, 2001 terrorist attacks in the U.S. The Netflix movie, Worth, dramatizes his work pretty well, and John Barylick discusses the same kind of heartbreaking decision-making in his book about The Station fire.
The Likelihood of Settlement
I have no information that In Re: Astroworld will resolve at any particular time or in any particular way. But it’s hardly a revelation that big cases tend to settle in the U.S., for lots of reasons that make sense to me. As much as some lawyers like to talk tough, the risk of losing a gigantic case is daunting in terms of time and expense – settlement extinguishes that risk. An essential subtext of the movie version of A Civil Action, which I recommend as good entertainment, is how and why lawyers try to settle cases. Also, jury trials can be scary. Even with the best jury consultants, deliberations are hard to predict, and jurors may fixate on some detail that is inconsequential to the lawyers or their case presentations.
Simple Legal Issues
I have long focused on the law of torts and contracts because I find them intellectually satisfying, and to be honest, pretty easy. Tort plaintiffs must prove four elements by a preponderance of the evidence; it takes only three elements to prove the existence of a contract. These are relatively modern formulations of common law concepts that emerged in England during the Middle Ages. Nothing new here, people. Even when lawsuits move from fact witnesses to “standard of care” experts like me, we’re still dealing with new facts applied to time-honored concepts. The “duty of reasonable care,” which is foundational stuff for expert witnesses, arises from a 1931 case, The T.J. Hooper, involving a tugboat and its operator’s failure to use newfangled radio technology to receive weather reports while at sea.
I alluded to all this with the ABA Journal writer because I think there is a story to be written for lawyers who never thought about live events before last November – it’s just not the story her editors suggested. Rather than focusing on evidence we don’t yet have and conclusions we can’t yet reach, it would be more useful to explain how, despite the novelty of the facts, the legal analysis and adjudication process will be satisfyingly familiar to their readers. We’ll see how this goes over with her editors.