by Alexander Clark

The Boston Marathon boasts a rich history dating back to its inaugural race in 1897. Its qualification system, introduced with a four-hour cutoff in 1970, has made the Boston Marathon an aspirational goal for many amateur and professional runners alike, symbolizing achievement in the running community. Its history is also marred by the tragedy of the infamous bombing on April 15, 2013. On that day, two brothers placed pressure cooker bombs near the Marathon’s finish line, resulting in devastating explosions that claimed the lives of three people and injured over 260 others. The manhunt for the suspects led to further chaos, including the killing of a police officer and additional property damage in the metro areas. The bombings not only shook the city of Boston but also prompted national and international attention, highlighting the need for enhanced security measures and reevaluations of terrorism response protocols.

As an insurance recovery/crisis management attorney and marathon runner myself, I have a particular interest in this race and the event that happened there 11 years ago. I remember being fascinated by the behind-the-scenes depiction of the response in the 2016 film Patriots Day while serving as an Air Force intelligence analyst. Since arriving in Dallas in 2021 and restarting my commitment to running with the DAYL Freedom Run, it has become my personal goal to qualify for and run the Boston Marathon by age 40.[1]  I also had the pleasure of working as a term clerk with Katie Carmona,[2] a former career law clerk to former U.S. District Judge Lee Yeakel of the Western District of Texas in the Austin Division, who was hit by a string of ball bearings from the first explosion while spectating on Boylston Street just 15 yards away.

As young lawyers navigating the legal issues that arise from the aftermath of crises like the Boston Marathon bombings, there are (at least) 11 lessons to learn:

  1. Crisis Response Strategies. Equip yourself with crisis response strategies for businesses impacted by catastrophic events to navigate the complexities of the situation, mitigate potential liabilities, and safeguard their reputation. Understand the importance of swift and effective communication, both internally and externally with stakeholders, customers, and the media.  Lawyers can help make sure that businesses have protocols in place to address immediate concerns while also planning for long-term recovery efforts.
  2. Understanding Legal Implications. Explore the legal ramifications of crisis management, including potential liabilities and regulatory compliance issues.  Build a cross-disciplinary team within your firm like the Haynes Boone Crisis Management Practice Group or build a referral network to connect your clients to specialists.  Lawyers play a crucial, and often time-sensitive, role in advising businesses on their legal rights and obligations during and after a crisis.
  3. Assessing and Mitigating Risk. Learn to conduct thorough risk assessments and develop mitigation strategies to minimize the impact of future crises on businesses and their operations.  Conducting thorough risk assessments allows businesses to identify potential vulnerabilities and develop mitigation strategies to minimize the impact of future crises. This may involve implementing security measures, enhancing emergency response protocols, and securing appropriate insurance coverage.
  4. Navigating Insurance Coverage. Grasp the complexities of insurance coverage post-crisis.  Learn to advise businesses on their insurance policies (including their duties to provide notice, to cooperate in adjustment, and to obtain consent before making payments) and coverage options.  Many terrorism exclusion endorsements, for example, will bar coverage for TRIA-certified terrorist acts.
  5. Arm Yourself To Fight Non-Paying Insurers! As explained by my colleague Benjamin Schindler, do not assume that the delay or denial of an insurance claim is the final word on the matter. Arm yourself with the right tools to hold your clients’ insurance carriers accountable to get the coverage that they deserve or collaborate with the Haynes Boone Insurance Recovery Practice Group.
  6. Educating Clients. Educate clients on the importance of proactive risk management measures, including the consideration of purchasing separate terrorism coverage or, if managing risk abroad, “Political Risk” coverage, and the potential consequences of exclusions, sublimits, etc. in standard insurance policies.
  7. Understanding TRIA Certification. Delve into the stringent criteria necessary for an event to be certified as an act of terrorism under the Terrorism Risk Insurance Act (TRIA) of 2002, which was passed after the 9/11 attacks. Familiarize yourself with the multiple governmental bodies involved in the certification process.[3] Understand the potential triggers and the subsequent responsibilities of insurers and businesses in settling claims.  If TRIA is activated due to a certified act of terrorism, insurers and businesses must adhere to specific guidelines for handling claims.  This may include the sharing of costs between the government and insurers for eligible property/casualty claims.
  8. Utilizing Data Insights. Utilize data insights from regulatory bodies and industry reports to inform legal strategies and provide valuable guidance to clients in the aftermath of crises. Lawyers can leverage this information to inform legal strategies and advocate for their clients’ interests.
  9. Collaborating with Stakeholders. Foster collaboration with stakeholders, including insurers, government agencies, and industry associations, to coordinate effective crisis response efforts and facilitate the resolution of insurance claims.  Lawyers can play a key role in facilitating communication and collaboration among various parties involved in the recovery process.
  10. Learning and Adapting Continuously. Embrace a mindset of continuous learning and adaptation in response to evolving legal and regulatory landscapes, ensuring that you remain well-equipped to address the dynamic challenges of your clients. Lawyers should stay informed about developments in insurance law, crisis management best practices, and industry trends to effectively serve their clients’ needs.
  11. Advocating for Policy Improvements. Advocate for policy improvements and regulatory changes that enhance disaster response mechanisms, including streamlining the TRIA certification process and ensuring adequate insurance coverage for businesses of all sizes.

[1] Thanks to the assistance of my local Train Pegasus run coach Alfonzo Gonzales Jr., an 8-time Boston runner himself, my marathon times have continued to drop—down from 4:50 when I was a 1L to 3:34 earlier this year.

[2] Today is Katie Carmona’s fifth Boston Marathon—join me in wishing her good luck and a great race!

[3] The Boston Marathon bombings were never certified under TRIA. Under TRIA, an event is not officially considered a terrorist act unless the Treasury Secretary, the Secretary of State, and Attorney General all certify it as an act of terrorism. The act must endanger life and property and have been taken to influence the public or government policy. Also, TRIA is only activated if there is at least $5 million of aggregate property and casualty losses.

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Alexander Clark is an Insurance Recovery and Crisis Management Associate at Haynes and Boone, LLP.

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Articles on the DAYL website are provided for informational use only, and are in no way intended to constitute legal advice or the opinions or views of the DAYL.