Aviation Lawyer?

[cj610]

Anyone ever have to retain the services of an Aviation Lawyer to deal w/ a possible violation? Any good ones out there? Should you find one close to your home or closer to the FISDO you are dealing with?

With a pending violation, is it better to just take your licking or is it beneficial to get a lawyer and hammer out some type of deal.

 

[JeffSKDTW]

If you've paid the $26/year to AOPA's Legal Services, then an attorney will be provided to you for free.

Here's hoping you're not talking about an "actual" pending violation.

 

[Lori Clark]

If you need a recommendation in the PHX area, PM me and I'll give you a referral.

 

[Lead Sled]

The AOPA Legal Services Plan is a good value, but it sounds as if we're a little late to have this discussion. Most attorneys won't charge you anything for the initial consultation. When it comes to something as important as your career and the effect that a violation could have on it, you probably owe it to yourself to at least talk with an attorney. If you don't know an experienced aviation attorney send me a private message, a good friend of mine is an excellent one and I'll forward his name and number to you.

Lead Sled

 

[TIS]

PM me with some generalities if you like

Here are a few things you should be aware of. This is long but hopefully informative.

First, has the FAA sent you a Letter of Investigation? If they have THAT is the time to get into it with the attorney. And let's be clear about one thing straight out of the box - if this is about your certificate/meal ticket getting punched you can forget about AOPA. Your difficulties are going to take more effort than they will help with for free.

Now, at this stage it's still in the FSDO and you REALLY want it to stay there. If it leaves there's very little chance that it'll come back and that means no chance of a warning letter. It also means you're battling uphill odds - the FAA wins 92% of their cases. A good attorney can shave that to perhaps 55% in the FAA's favor.

The LOI invites your response within 10 days. If you have an LOI, how much of that is gone? The thing to understand about the LOI is that since it’s an invitation for you to comment you should be polite and comment – without saying anything. Furthermore, YOU should NOT say anything at all – an attorney should. An attorney’s letter does two things. First, it will let the FAA know hat you take what they’re doing VERY seriously and second, it will give you a layer of deniability. That is, you’ll be able to point to anything written by your attorney as being incorrect. It just gives you a bit of a buffer if you ever need it.

The investigation accomplished by the FSDO is guided by the applicable inspector’s handbook. FAA Order 8700.1 covers general aviation, while FAA Order 8400.10 is the Air Transportation Inspector’s Handbook. See these links for a PDF of what you want.

www.faa.gov/avr/afs/faa/8700/
www.faa.gov/avr/afs/faa/8400/change24.cfm

Choose the one that applies to you and start reading. You’ll need to know what to expect. Certain good behaviors outlined in these handbooks count towards your “cooperativeness quotient.” Cooperation can be useful in keeping things at the FSDO level but you’ll need professional advice as to just exactly how cooperative to be.

NASA report. Did you file one? If not get on it! And be careful about how you title the identity strip. Let’s say you are accused of doing 250 in a 200 zone. A bad description of the event on the ID strip would be, “Exceeded 200 knot speed limitation beneath Class B airspace.”

The reason this is a bad title is because the ID strip is the only record that you filed a NASA report that you will have and if you want it as your get-out-of-jail-free card, you’ll have to show it to them. Unfortunately, when you give it to them to show proof that you filed the report you are providing evidence – evidence that incriminates you. The FAA already has precedent saying that they can use the ID strip description as evidence against you. The bottom line is that you need to be careful how you prepare the form. If you think you’ve already blown it re-submit the report with a better title and use that one.

Now let’s move on to what happens if the investigation leaves the FSDO as a pilot deviation. Once the matter is determined to constitute a deviation by the inspector investigating your case the matter enters a new realm and it becomes a process that you must simply endure.

You’ll be three to five months into the process when this occurs. The FAA has a statute of limitations of six months to make their case. Beyond that they relinquish their right to prosecute.

FAA legal in the region will receive an evidentiary file that states the case. If there’s a violation supported by that file, you’re guilty and you’ll receive an Order of Suspension from that legal office. That’s it, cut and dried! Along with the Order of Suspension you will receive instructions on how to appeal the Order to the NTSB. This is the first point at which you can use your ASRS report, and so, how to do it is also explained.

This is where things will get expensive quickly because this is where your attorney will actually have to start preparing a case. This will include, but is not limited to, numerous letters requesting various things from the FAA, researching and retaining expert witnesses, informal (settlement) conferences, meetings with your attorney, numerous faxes, letters and/or e-mails, and so on.

Now before we move on, there are a couple if things I’d like to make you aware of. First, how you choose an attorney is fairly important. You might consider getting one that is local to the region in which the case will be handled. The reason is that your attorney might very well know the FAA attorneys that are behind all the nasty certified letter’s you’ve received.

Why is this important? I said this was a process. It’s a legal process and legal process often happens over lunch or a snack. If the attorneys are chummy, it can really help grease the skids.

Another thing you might want to consider is hiring an ex-FAA attorney now in private practice. These guys DEFINITELY will know some people on the inside, and they may very well know your people quite well. The drawback here is that these guys are experienced, and are, therefore, expensive. Their negotiating power can be considerable though and if you need a clean record (or at least one that’s soiled for minimum time) it might be worth the money.

The second major thing you need to be aware of is that FAA legal is grossly under-funded. They are under enormous pressure to make cases go away through settlement if they can. Be aware also that if you’ve triggered a hot button – like a runway incursion or a TFR violation, you’re in for a no-negotiation party. Either way, forcing them to keep their attention on you by continuing to fight may get expensive but it will eventually wear them down.

Take advantage of informal conferences. These are conferences held between your side and their’s to try to settle the case. They are off the record so they are often quite candid and you’ll learn a lot about their attorneys and what they think they have by scheduling one. You’ll also get to see how your attorney plays with these FAA nasties. It can be an illuminating experience. Understand too that there is no limit to the number of informal conferences you can have – as long as everyone agrees to them.

Additionally, it’s important to understand that informal conferences can be conducted over the phone or in person. If you have a choice and you can afford it, go in person. If you have to travel to get to an informal conference, keep in mind that you’ll have to pay for your attorney’s time and travel expenses while on the road. That horror is balanced by the possibility that the conference might make a strong enough impression to settle the case short of a full–blown hearing before an administrative law judge (ALJ).

The last thing I want to express is that it’s YOUR defense so you should be active in it! DO NOT assume that your attorney is handling everything silently behind some ethereal curtain someplace. He’s not. He’s probably having a steak at Ruth’s Chris Steakhouse!

Your attorney is an experienced negotiator and researcher – two very critical elements of operating in and around the law. Essentially, in law, he who finds the best cases wins. You know all those books you see in lawyers’ offices? Those are books containing case law and buried deep within one of them might be the solution to your problem. The trouble is that someone has to know it’s there and that’s where the experience of your attorney comes in. The ones that have been around the block a few hundred times have personal experience dealing with situations in which precedent applicable to your case might exist.

This does not mean that you can’t dig up a thing or two on your own. If it’s your certificate, it might be worth your time to do some heavy duty digging both on the internet and in the nearest university law library. You never know, you might come up with the straw that breaks that FAA camel’s back.

I’ll tell you what. I’m gonna stop here because I’m hoping your case doesn’t get to a hearing. There’s a whole other Part II to this that deals with the approach to the hearing date that’s fairly important to be familiar with. Why don’t you let me know if you want to go down that road.

I hope this helps you out. I did a lot of research on this a few years back for my company and there’s a LOT that’s well worth knowing.

Good luck!

TIS

 

[FN FAL]

My aviation attorney is my co-pilot!

Yea, the guy I use, used to fill in as a co-pilot at the 135 place I worked at previously.

If I want a free consultation, I just call the guy up and meet him for lunch.

Looks like TIS has this thing pretty well sewn up...

 

[B-J-J Fighter]

PM me if you need someoone in the southeast. He help me out before. Very nice guy as well.

 

[JB Bus Drvr]

As a former FED I can tell you that hiring an attorney can be a double edged sword. First, any informal negoiation goes out the window as to making an aimical solution to the situation. It's CYA for the investigating inspector. Hiring an attorney means that you mean business and the FED does want to look stupid to his boses so he will put every effort into proving the alledged violation and in many cases will go into the overkill mode. If they go that far, the original violation will have several other attached to it. Let's say you entered Class B airspace without authorization. That can be easily fixed with retraining, Letter of Correction or a Warning Notice. Hire an attorney, and it will more than likely become beside an airspace violation, careless and reckless, failure to comply with ATC instructions and then your aircraft is looked at for any maintenance violations, which are on you, as well as your logbook for any problems. The real rub is in the end when after you've spend several thousand dollars on an attorney, you get Warning Notice, because the FAA Regional Attorney decides that it not worth the time to take it to court.

Best advice is that if you have a problem, see what the attitude of the Inspector is before hiring an attorney. A lot of times, a solution can be worked out with the FSDO Safety Program Manager with little pain involved. If the Inspector comes of like a jerk, then get the attorney. Finally, be honest. You don't like to get BS'ed in your job and neither does a FED. You piss him off and your will get the full force of the Agency.

If you have a specific situation, PM me and I can give you a rundown on what to expect and how to lessen the effect.

 

[cj610]

Thanks

Thanks for your posts. I might be getting back w/ a couple of ya if this thing starts heading down the wrong trail.

CJ610

 

[Little_GTO]

TIS has it together. I would bet he has gone through the same crap as I once did. Listen to him, he knows the program.

Get a lawyer. Now.