Ten days in September
Tuesday, September 11, 2001, dawned a gorgeous New England morning—sunny, warm, and dry. But shortly before 9 a.m. a nightmare began to unfold in New York City, and soon thereafter at the Pentagon and near Shanksville, Pennsylvania. Within an hour, it was clear that the United States had suffered the most massive and horrific terrorist attack in its history.
Like Americans everywhere, members of the American Association for Justice (formerly ATLA) were stunned, saddened, and angry—and we wanted to help. The 19-member Executive Committee (including David Casey, AAJ President 2003-04 and Todd Smith, AAJ President 2004-05), charged with addressing matters of urgent importance to the association between Board of Governors meetings, immediately began discussing an organized trial-lawyer response that would help shape how the law and the profession would aid thousands of victimized families.
Several things were immediately apparent to the committee. First, it was clear that 9/11 had altered life as we knew it. Nothing would be immune from change—including the legal system. The committee also realized that 9/11 was a mass murder, not a mass tort, which would affect how the legal system should respond.
We understood that even if airline negligence had contributed to the hijackers’ success, the civil justice system could not possibly render compensation in the traditional way: The airlines would not have enough insurance to cover even a small fraction of the potential damages. (The committee soon learned that the two planes that struck the World Trade Center had a total of $3.2 billion in insurance coverage, and in New York the property damage alone exceeded $50 billion.) Finally, committee members felt strongly that the legal profession had to respond in a coordinated, restrained, thoughtful, and patriotic way. Discipline was imperative.
On the night of September 12, the committee authorized a press statement, to be issued the next morning, calling for a moratorium on the filing of civil lawsuits arising out of the attacks. The statement also signaled to Congress and the White House that AAJ was willing to consider supporting federal remedies for the victims. This was a significant departure from AAJ’s long-standing reluctance to involve the federal government in providing civil remedies for injured people. But the committee believed that an exception was appropriate under these exceptional circumstances.
Reaction to the statement was immediate and powerful. More than 700 members e-mailed their approval to AAJ. Although the moratorium had no force of law, it was honored for many months after the attacks; it was finally broken not by a victim, but by an insurance company, which sued one of its insureds to disclaim coverage for the loss of the trade center buildings.
Two hours after the statement was released, AAJ learned that airline lobbyists were on Capitol Hill seeking bailout legislation, as an amendment to the supplemental budget, that would include loan guarantees, cash, and near-total tort immunities. That effort failed, thanks in part to the powerful and immediate advocacy of Linda Lipsen and AAJ’s Public Affairs department, but the airlines returned to the Hill Monday morning with a standalone bill. The same day, AAJ’s Executive Committee—believing that Congress had to address victims’ needs as well—met by conference call to continue hammering out a plan for a compensation program and pro bono representation for the victims.
Two days later, an AAJ delegation met with House Minority Leader Dick Gephardt (D-Mo.) and with Senate Majority Leader Tom Daschle’s (D-S.D.) top aides, who enthusiastically received the idea of a victim compensation fund and engaged members and leaders on both sides of the aisle. They asked the association to put the concept of such a fund in writing, and the AAJ staff went to work. Chief draftsman were Bob Peck and Dan Cohen.
That afternoon, AAJ’s delegation met with counsel for American Airlines and United Airlines. The delegation learned that the insurer for one airline had terminated its war-risk and terrorism coverage. The lender for the other had threatened to withdraw its line of credit if the airline had uncapped liability exposure for 9/11. These were powerful arguments for the bailout bill, and they were persuasive to members of Congress. (The dire predictions for the airlines proved true for United, which declared bankruptcy in December 2002.) The bailout bill had gathered great momentum and presented a unique opportunity to attach a fund for the victims.
At 7 p.m. Wednesday, AAJ faxed its written concept for a fund to the Hill, and in an all-night negotiating session among House and Senate leaders of both parties, an agreement was drafted. Negotiations continued into the following day.
The final agreement, reached Thursday night, was very favorable to the victims: Eligible claimants would receive full tort-type damages, without proof of liability or causation; neither damages nor legal fees were capped; and prompt payment from the federal September 11th Victim Compensation Fund was guaranteed. Victims could choose to litigate instead of filing a claim with the fund, but the airlines’ exposure would be limited to their insurance. The only provision AAJ protested was that the amount of collateral sources of benefits, such as life insurance, would be deducted from fund awards.
The bill went to the floor of the Senate Friday morning, September 21, where it passed 96 to 1. The House voted 356 to 54 to approve the bill. It passed both chambers a mere 10 days after September 11 and only 60 hours after AAJ first proposed the fund concept to Congress. After its passage was certain, AAJ wrote to leaders in both houses of Congress, pledging to represent every victim of 9/11 free of charge. The letters were read on the floors of the House and the Senate.
That night, AAJ issued an e-mail call for pro bono volunteers. By Monday, hundreds of members had replied, offering their services. So began the largest private, civil, pro bono program in the history of American law.
Leo Boyle, association president 2001-2002, is a partner in Meehan, Boyle, Black & Fitzgerald in Boston.
Attorneys of mercy
Trial Lawyers Care (TLC) was launched on September 24, 2001, the Monday after President Bush signed into law the legislation that created the September 11th Victim Compensation Fund. TLC was a commitment to represent potentially thousands of victims, and it required a great deal of hard work in a very short time. Trial lawyers—whom MSNBC called “attorneys of mercy” in news coverage of the project posted on its Web site—have always performed best in times of crisis, and the TLC effort proved this yet again.
As AAJ began organizing its resources, it tapped me to head up the effort. We knew that several state trial lawyer associations—most notably those in New York and New Jersey—were considering similar programs. We immediately contacted their leaders, who agreed that resources should be joined in a single coordinated project. Shortly thereafter, the trial lawyer associations in Massachusetts, Connecticut, and Virginia joined the effort.
It was clear that a new organization would be necessary. On October 3, TLC was incorporated, with bar leaders from the states most affected by the terrorist attacks constituting the majority of its board. I was elected president.
TLC had no offices, policies, budget, or staff. None of the officers or board members had ever run a pro bono program. The U.S. Department of Justice was beginning to formulate regulations to govern the fund’s operation. Thousands of victims were mired in overwhelming shock and grief, and some lawyers were beginning to solicit for-fee clients, claiming that victims who chose free legal services would “get what they pay for.” Given these challenges, TLC’s organizers knew that complete success was the only option.
TLC’s officers and board met frequently during the early months. Temporary space was allocated at AAJ headquarters, a preliminary working budget of $3.6 million was established, fund-raising plans were initiated, and key AAJ employees were temporarily assigned to TLC while money was raised to hire staff. To get TLC started, the AAJ Executive Committee pledged $100,000, plus “bridge funding,” and the Habush AAJ Endowment provided a $100,000 grant. Other bar associations, notably those in Florida and Illinois, also made contributions, as did many individual attorneys.
The goal was to “open” for business by mid-October. On October 15, TLC officially launched its operations with a press conference in New York City, announcing a toll-free telephone number and an e-mail address for victim contacts.
Larry S. Stewart, association president 1994-1995, is a partner in Stewart Tilghman Fox & Bianchi in Miami.
An early task was informing victims that free representation was available. Many were so traumatized that communication was difficult, if not impossible. Advertising was too expensive, and press coverage was insufficient.
By December, TLC had developed a comprehensive victim-outreach program and began to schedule appearances at victims’ meetings and rallies and with support and advocacy groups. Literature in English, Spanish, and Chinese explained TLC. The AAJ Media Relations department placed op-ed articles in New York newspapers and developed a concerted media-outreach effort to publicize the program.
By the end of the claim-filing period two years later, TLC staff had distributed more than 6,000 victim information packets, attended over 200 meetings, linked information about TLC services to numerous Web sites, and notified the New York City general consulate of every country that lost citizens on 9/11—and officials of every business or other entity that lost employees in the attacks—that free legal services were available.
Another early concern was the government regulations that would specify how claims would be filed and compensation awarded under the fund. To ensure that the regulations would not dilute the broad provisions of the statute that created the fund, TLC drafted a comprehensive set of proposed regulations and submitted them to the Justice Department in early November. Through November and most of December, TLC engaged in lengthy negotiations over the regulations, first with the agency and then, after his appointment, with Special Master Kenneth Feinberg. The Justice Department issued interim regulations on December 21, but negotiations continued as final regulations were prepared. They were adopted on March 7, 2002, and, for the most part, were true to the intent of the law.
Congress delegated the selection of a special master to govern the fund to Attorney General John Ashcroft. When several politicians began to lobby for the job, TLC urged Ashcroft to appoint a professional administrator. He made a masterful choice: On November 26, he appointed Feinberg, one of the nation’s top mediators.
Working with volunteersAs word of the TLC program spread, offers of help poured in from attorneys around the country. To ensure quality representation for the victims, the TLC board developed criteria for selecting volunteers. The board decided that volunteer lawyers must have law-practice and trial experience and—to avoid any potential for conflict—it required a pledge that the attorney and his or her firm would not handle any for-fee claims arising out of the 9/11 attacks. Also, with the help of the state trial lawyer associations, TLC developed a system to match the more serious and complicated cases with more experienced attorneys.
The fund’s compensation process was untested and without precedent, and the volunteer attorneys needed guidance to navigate it. Within three weeks after the interim regulations were announced, TLC published a 300-page handbook, produced by AAJ's Education department, covering all aspects of representing a victim before the fund. When the final regulations were released, TLC completely revised the handbook and delivered it to volunteer attorneys within a month.
TLC also worked with the trial lawyer associations in the affected states to organize seminars on how to handle claims; 10 were held, open to all volunteer attorneys free of charge. TLC also offered 10 teleconference seminars on specific topics.
To keep volunteers updated about important developments, TLC regularly issued bulletins and posted new information on its Web site. In a secure area of the site, a client-attorney matching system enabled lawyers to share information about cases and compare claims and awards. A list server allowed volunteers to communicate efficiently. Further assistance came from more than 200 pro bono expert witnesses whom TLC recruited to work on cases.
Growth spurtIt was critical that TLC be based in New York City; a temporary office there opened on December 3. Meanwhile, the New York State Trial Lawyers Association, working with the New York judiciary, secured space for TLC at a nominal rent, and on January 7, 2002, the five- person staff moved into a state court building at 80 Centre Street.
Funding continued to be a major concern. As the staff grew and TLC learned more about what was required to represent victims, its budget increased, eventually reaching $4.5 million. The AAJ budget was already stretched to the breaking point, so funding for the program had to be raised elsewhere.
Fortunately, TLC secured major grants from the leading 9/11 charity in New York, the September 11th Fund, which also facilitated significant funding from the Red Cross. The September 11th Fund made a considerable additional contribution to TLC’s program for catastrophically injured victims, whose cases involved extraordinary expenses. Without those charities, TLC would probably not have been able to fulfill its mission.
By spring 2002, the TLC staff had expanded to 21. For every employee, TLC was a passionate commitment. Led by executive directors John Bailey and Susan Yakutis, victim-outreach and attorney-assignment coordinator Sandra Cuneo, and attorneys Meryl Braunstein, Paul Holdorf, and John Jeannopoulos, the staff logged long hours to help victims and support volunteers. No question went unanswered: In about two and a half years, TLC staff lawyers responded to more than 7,000 inquiries from volunteer attorneys.
Many victims found making decisions or even addressing daily needs extremely difficult, so TLC expanded its outreach, ensuring that program representatives attended every advocacy group meeting, session with Feinberg, and other event where victims gathered.
Attorneys from across the country volunteered their services, but distance complicated the case-assignment process. Most victims wanted a local lawyer, and to ensure that representation was truly cost-free, TLC required out-of-state volunteers to travel at their own expense to meet with clients. As a result, TLC lost some long-distance volunteers and had to undertake a major attorney recruitment effort. With significant help from the New York State Trial Lawyers Association, TLC always had enough volunteer lawyers to fulfill all requests for representation.
Work continued at a frantic pace during the summer and fall of 2002. TLC and its volunteers were learning that representing victims of such a horrific event was complex and time-consuming, and preparing claims was not easy. Many victims needed help gathering relevant documents and identifying witnesses. And because the process was skewed toward compensating economic losses, creative lawyering was needed to fully develop all aspects of those losses such as the replacement value of services provided by those killed in the attacks. All this slowed the claim-filing process.
The regulations answered many questions that arose during claim preparation but left many uncertainties. Those uncertainties and the lack of any precedent for this type of compensation were contributing to a sense of unease among victims, so TLC selected 16 “lead” cases that involved a broad range of issues and, working with the individual attorneys, committed major resources to help prepare the cases and submit them as a group to Feinberg. Later, a second group of eight cases was submitted.
The lead cases clarified many issues, showed the victim community that awards would be fair, and quieted critics who claimed that pro bono representation would be less than adequate.
TLC also addressed a host of other issues. For many months, it sought and finally obtained written assurances from the Immigration and Naturalization Service that undocumented foreign claimants would not face deportation because they filed a claim with the fund. The regulations were silent on the rights of domestic partners, and TLC advocated for their inclusion as beneficiaries; Feinberg considered this question on a case-by-case basis. TLC also pressed for structured payout options, which were finally approved in late 2003.
The final push
In November 2002, Leo Boyle assumed the presidency of TLC. Efforts increasingly concentrated on ensuring that enough volunteer attorneys were available to represent victims and file their claims in a timely manner.
As the filing deadline of December 21, 2003, approached, TLC intensified its outreach efforts to make sure that all potential claimants—especially non-English speakers—knew of the deadline. On the final day for filing, TLC remained open through the evening and met the deadline for all claims, including those brought by about 50 ironworkers from the Mohawk Nation near Montreal. They had helped build the World Trade Center and were injured while helping in the 9/11 rescue efforts, but they had learned of the fund only at the last minute. TLC organized Canadian lawyers to represent them and ensured that their claims were filed.
With the close of the filing period, Richard Bieder assumed TLC’s presidency. Efforts during the program’s final months helped volunteer attorneys present claims, secure awards, establish structured payouts, and conclude their representation. The fund is projected to have completed work on all claims by the time this article is published.
More than 3,500 families requested TLC assistance. Of those, about half—1,739 claimants from 35 states and 11 countries—were eligible to file claims with the fund. They received more than $350 million in free legal services provided by over 1,100 TLC attorneys from every state, three Canadian provinces, Australia, England, and Mexico.
These lawyers, the true heroes of TLC, proved the critics wrong: As of mid-April this year, more than $500 million had been awarded to TLC clients; the final total is expected to exceed $2 billion. Awards to TLC clients have averaged over $2.1 million per claim, compared with the average for non-TLC cases of about $1.8 million. TLC clients also gained from not having to pay fees or costs, which averaged about $200,000 per case. Overall, TLC clients fared better—by about $500,000—than fund claimants who chose for-fee lawyers.
The Victim Compensation Fund was a great success: In the end, the families of 98 percent of all those killed on 9/11, as well as hundreds of injury victims, filed claims with the fund.
Many deserve credit for the success of TLC. In addition to the program’s officers, directors, and staff, several others played critical roles: then-AAJ General Counsel Michael Starr went to New York to serve as TLC’s acting director for five months in 2003; Bill Mauk left his Idaho practice to work as a staff attorney for three months; Chris Koerner, vice president in AAJ's Political Outreach department, led fund-raising efforts; Steve Peskin (TLC’s current vice president) and TLC board member Drew Britcher led volunteer-attorney recruitment; and Carlton Carl, vice president in AAJ’s Media Relations department, managed TLC’s outreach to the press.
Representing the victims of 9/11 has been a massive and extraordinary undertaking. Many volunteer attorneys have said their TLC work was the most rewarding experience of their career. The awards not only helped reconstruct lives but also restored hope and a future where none existed before.
As Feinberg wrote in a letter to then-TLC President Leo Boyle: “What TLC is doing is unprecedented in American history. You . . . should take great pride and personal satisfaction in helping to assure the success of the 9/11 Victim Compensation Fund.”