Lawyers of the Sky
Attorneys at the intersection of aviation and law
Published in 2009 Colorado Super Lawyers magazine
By Kevin Featherly on March 9, 2009
Joseph Thibodeau took a long, looping path to coupling his lifelong passion for aviation with his love of lawyering
Joseph H. Thibodeau has been a tax attorney since 1966. But you’d almost think that career was incidental. The guy is an aviation fanatic. He is listed in Who’s Who in Aviation and Aerospace, and in November was named to Colorado’s Aviation Hall of Fame. Since 1996 he has flown in the National Championship Air Races, winning three times-once with his vintage P-51 Mustang and twice with a Hawker Sea Fury. He’s had the aviation bug since he started playing with his first gasoline-powered model airplane at age 6.
Given that his father was an aeronautical engineer, Thibodeau’s path seemed preordained. But instead, encouraged by a former dean of the University of Detroit College of Law in his native Michigan, he chose to pursue a career in law and found a perfect fit in tax law. “I was always into numbers, I loved math,” he said. “It was a natural for me. Even today if I have any particular skill set in the area of taxation it is the ability to recall and analyze and associate numbers.”
He started out in 1966 by working for the U.S. Justice Department’s tax division, where he worked as a trial attorney for four years before moving back to Michigan. There he served as the legal adviser to Michigan Gov. William Milliken. In 1971, he decided to pull up stakes and move to Denver, where he entered into private practice. Today he is the founding partner at Joseph H. Thibodeau, P.C., a five-attorney firm in Denver.
It was in the Mile High City that the inevitable happened. Thibodeau got his pilot’s license—today he is even airline-transport rated. But Thibodeau, who was accustomed to succeeding, was nearly stymied in earning his instrument flight credentials by a former Navy instructor.
“He was just a very by-the-book tough guy,” says Thibodeau, who admits he was several times brought to the brink of tears because of the importance of getting his instrument rating. “But I would just sit down and talk to myself and say if I can get past this guy, I will be the better for it.” Eventually, he did.
After 38 years on the job, Thibodeau’s passions as an airman and as an attorney eventually merged when he began taking on aviation law work. In that sphere, he primarily represents airmen and aviation-related entities in criminal and civil FAA enforcement proceedings.
He says his two areas of legal specialty—aviation and tax—are not so disparate as it might seem: the FAA and the IRS have a lot in common. “You’re dealing with agencies that have tremendous power over people’s lives, for good or bad,” he says.
“When people are confronted by those two agencies, it’s typically a high-stakes situation,” he says. “A pilot may be threatened with loss of his flying privileges. A tax client may be threatened with loss of his liberty, in the extreme situation where they are pursued and prosecuted criminally. So there is a lot of parallel there.”
Thibodeau, who was recently appointed to the Colorado Aeronautical Board, agrees with those who think that, for a lawyer to effectively work as an aviation counsel, being a pilot is a huge plus.
“You can clearly understand and identify the situations—the weather conditions, the air traffic control issues, the manufacturer compliance issues, operating maintenance, certification,” he says. “You’re out there in the arena in which you are finding yourself representing people. And I think it’s an invaluable tool.”
No Time To Fly
Mary Wells thought that once she got out of law school, she’d constantly be in the air. Not so much
Mary A. Wells took flying lessons while attending the University of Denver College of Law, expecting that once the scurrying life of a student settled into the professional routine of a lawyer, she would have plenty of time to log flight hours. She successfully became a pilot around the time she earned her law degree in 1977, but things haven’t quite worked out as planned.
“It really is a matter of time,” she says. “To maintain competency as a pilot you have to fly all the time, at least once a week, and twice a week would be much better. It’s just not possible for me.”
Wells has been a busy attorney. A founding member of Denver-based Wells, Anderson & Race, she has over the years represented clients in mass tort litigation for medical device, pharmaceutical, safety equipment and friction product companies. During the 1990s, her work in breast implant litigation led to changes in the law of expert evidence and causation.
In addition to all that, Wells has extensive trial experience in aviation products liability cases, primarily in the defense of airframe manufacturers.
“That came together really by happenstance just because I ended up with a firm that did some aviation work for aviation manufacturers,” she says. That firm was Weller Friedrich, which she joined in 1977. “Shortly thereafter, I just had the good fortune of getting to work on some of those cases. My work for airplane manufacturers increased dramatically as my experience increased.”
One of her most significant cases involved a crash on March 27, 1980. The plane, which was owned by a Texas company named Lufkin Industries, took off from the Arapahoe County Airport loaded with vendors on their way to a recreational weekend in Lufkin, Texas. The passengers loaded up golf clubs and cases of beer, and the plane was grossly overweight. The weather was bad and ice began forming on the plane. The crew realized the danger early on and changed their flight plan several times before crashing in a field near Parker, Colo., and killing the 10 passengers.
Wells represented the Beech Aircraft Corp., which was being sued for allegedly producing a plane that couldn’t safely fly in icing conditions. “The claims against the airplane, if proved, would suggest that the entire fleet was unsafe,” Wells says. But it was also significant to the innovation of trial tools. Wells employed the use of one of the first flight animations ever used in trial, which, coupled with performance analysis of the plane, showed jurors the exact flight path the plane had taken and the actions the crew could have taken to avoid disaster.
“They had not used their engine anti-ice when they took off, because they knew they were over gross weight, and if they turned on their engine anti-ice, they would have had less horsepower available from each engine,” Wells says. Each engine flamed out, she says. “But from where they were at the time, they could have glided back to Arapahoe Airport.” After a three-week trial, it only took the jury 25 minutes of deliberations before coming back with a verdict favoring the manufacturer.
Thanks to the federal General Aviation Revitalization Act—which says that design-defect cases cannot be brought against manufacturers once an airplane is 18 years old—Wells says many frivolous cases against manufactures have been eliminated.
Although her national trial practice has shifted to clients in other industries, Wells still devotes 60 percent of her work to aviation law. She is currently representing Cessna and Garmn Industries in two separate cases involving crashes.
“It’s a whole lot of fun,” she says. “From the lawyer’s perspective, the variety of the issues that you have to deal with are complex, they are all intertwined. You have to understand so many different technical areas and human factors, and put it all together in a way that the jury can understand it.”
The Utility of Flying
Rich Musat found a niche in aviation law, and now he commutes to work in style
A love of flight was ingrained in Rich Musat from a very early age. The Denver aviation attorney grew up near an airport in Cleveland, and began dreaming of becoming a pilot. Instead, he became a high school and college swimmer, which took up all his time. He even joined the U.S. Air Force, but not as a pilot. Then he went to law school at Cleveland State University and, 34 years ago, became a practicing attorney with what was then a large Denver law firm, Hall & Evans.
“I had a client back then who had a private aircraft, and I was flying with them to go to various meetings or court-related hearings,” he recalls. “That’s when I discovered the utility of flying and how great it was in a private airplane. I became very interested in that and started flying myself. I took private pilot’s lessons and became a pilot.”
After working at the firm for a while, Musat realized that there was an entire area of law devoted to aviation, and his firm had no aviation lawyers. He wanted in on that action, both as a means of creating a niche for himself and to expand his firm’s practice. But there was a problem.
“I didn’t know how to market myself, I didn’t know how to get into the sort of clique,” he says. “I started going to various seminars and meetings and things and shortly thereafter I started getting a little aviation work.”
His career changed forever on November 15, 1987. A Continental Airlines Douglas DC-9 crashed on takeoff to Boise, Idaho and flipped over. Miraculously, there was no fire. However, when the plane came to rest on its tail fin, the mid-section buckled, crushing and killing 29 people. Musat was selected to represent Continental in the case, which dragged out through years of appeals and decisions.
During that case, Musat discovered how fortuitous it was that he was both an attorney and a pilot rated for single-engine, multi-engine and instrument-rated flight. “I realized,” he says, “how important it was to know a lot about aviation itself—how an airplane flies and how a pilot approaches a flight, how a flight is dispatched and weather issues related to a flight. Having that experience was absolutely invaluable in learning then how to organize and litigate a case.”
Musat, who went on to become a founding partner in the 25-member Denver law firm Treece, Alfrey, Musat & Bosworth, has worked full time in aviation law for more than two decades. He has covered cases involving products liability, contractual disputes, fires and explosions, professional liability and wrongful death actions. Some of his cases have had national notoriety, such as the 2001 crash outside Denver that killed two members of the Oklahoma State basketball team. Some have had mostly federal jurisdiction, others have remained in the state courts. It has been a widely varied and fascinating career.
“It’s not like you’re always litigating one widget and did that widget fail or not,” he says. “The issues are always different because of the different equipment and the different environment that an airplane is in. That makes it really interesting.”
What his cases seem to have in common is travel, which is another reason why it’s fortuitous that Musat is a pilot. “It’s a blending of two passions of mine,” he says. “I fly our corporate plane all over the place, and most of my work is all over the country. I actually don’t practice in Colorado as much as I practice all over the country. It’s just the nature of aviation law.”
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