Trial Magazine

 

It was around 6 a.m. in Boise, Idaho, on Sept. 11, 2001, when American Airlines Flight 11, carrying 92 people, lifted off from Logan International Airport in Boston. It was followed shortly by United Airlines Flight 175 with nine crew, 56 passengers, and five hijackers onboard. At 6:46 a.m. Mountain Time, Flight 11 was flown into the North Tower of the World Trade Center at high speed, destroying floors 93 to 99. About 17 minutes later, Flight 175 pierced a corner of the South Tower at an angle and blew up in a fireball.

My wife, Susan, and I were just getting out of bed. As was our morning habit, Susan turned on the “TODAY Show,” and we saw the billowing clouds of gray smoke leaking from gaping holes in the Twin Towers, drifting across the Hudson Sound. Uncertain of the cause and the immeasurable consequences, we watched in awe. For most Idahoans, the developing horror was shocking but remote. For us, it was personal.

My brother, an attorney with the Port Authority of New York and New Jersey, worked on the 88th floor of the North Tower. His office was just a few floors below the initial attack. A call to John’s office, answered with his recorded voice, provided speculative optimism that he wasn’t there or was on his way to safety.

Later, a message from his wife relayed through their son in Vermont offered more hope. He probably stopped to vote in the New York primary election. But this confidence waned as we watched the horrific collapse of the South Tower, followed by John’s building—over 200 floors of steel, concrete, plaster, glass, paper records, badges, and human remains.

Not until late that afternoon did we learn that John had voted and arrived at the World Trade Center Plaza just when the South Tower began to crumble. He took instinctive refuge in a bank lobby, as the particulates of what would become Ground Zero enveloped lower Manhattan.

My brother and our extended family were among the lucky ones that day. But little did Susan and I then appreciate how our connection to 9/11 was destined to become even more personal.

Just 36 hours following the terrorist attacks, the ATLA Executive Committee endorsed a moratorium on civil suits arising from this national tragedy. In lieu of protracted and inevitably inadequate litigation, ATLA proposed a program of federal government remedies for the victims.

In the ensuing days, ATLA officers and staff worked tirelessly with key congressional leaders to make that a reality. On Sept. 21, in a spirit of unity and urgency, the landmark legislation establishing the September 11th Victim Compensation Fund (VCF) overwhelmingly passed both congressional houses and was signed by President George W. Bush the next day. In a letter read to Congress, ATLA President Leo Boyle pledged that the “members of ATLA will provide free legal services to any family wishing to pursue justice through the Fund.” Trial Lawyers Care (TLC) became the fulfillment of that collective promise.

Two months after the attacks, I attended a meeting in Washington, D.C., in which Boyle introduced the Board of Governors to the VCF and unveiled the formation of TLC. I sought out Boyle, offering my enthusiastic praise and any help I could contribute to this noble cause. I told him about my firm’s history with a federal law providing enhanced retirement benefits to federal land firefighters. Through a selection of the first adjudicated retirement claims, we produced a body of precedent-setting interpretations favorable to claim beneficiaries nationwide. I suggested that TLC do the same with a group of lead cases submitted to the VCF.

Without hesitation, Boyle asked if I would be interested in going to New York to lead such a project. Surprised, I told him I would have to check with my wife and my partners. I had no expectation of earning a salary from a pro bono legal program with uncertain funding. My initial thought was that with a concentrated effort, TLC could submit our first lead cases in three months, and I would move on. That time line proved overly optimistic.

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In a letter read to Congress, Boyle pledged that the ‘members of ATLA will provide free legal services to any family wishing to pursue justice through the Fund.’ TLC became the fulfillment of that collective promise.

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A native New Yorker, Susan was genuinely enthusiastic. My faithful partners were encouraging and, in my absence, felt they could juggle the foreseeable demands of my pending case load. So I accepted Boyle’s offer. I assumed the self-styled title of Director of Litigation Support, selecting and launching the TLC lead cases—and eventually much more.

My first task was to become intimately familiar with the provisions of the VCF Act and the Department of Justice’s (DOJ) draft regulations. The act creating the VCF was intentionally succinct, leaving most of the detail to be crafted by the DOJ in consultation with a yet-to-be-appointed special master.

Eligible claimants were defined as individuals who were present “at the time, or in the immediate aftermath of the terrorist-related aircraft crashes” at the World Trade Center, the Pentagon, or the field near Shanksville, Penn., where United Airlines Flight 93 crashed—excluding terrorist participants and conspirators—who “suffered physical harm or death.” Also included were “the personal representative[s] of [a] decedent” filing on behalf of the decedent’s family—which, as it turned out, were the majority of the claims.

The special master was exclusively empowered to determine the compensation awarded on each claim with no provision for appeal. Of central import, awards would include economic and noneconomic losses, considering “the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant.” Punitive damages were expressly excluded, and there was an undefined offset for collateral source compensation such as life insurance and perhaps pension funds. Fundamental to the act’s passage, every claim beneficiary would abandon filing or maintaining any civil action in any court seeking damages arising from the terrorist crashes, except to recover collateral source obligations.

Hoping to facilitate the expedient resolution of claims, the act contemplated the development of a standard claim form to solicit essential facts that supported eligibility and losses that could be filed electronically. There would also be loss tables estimating awards for various earnings categories. However convenient and instructive, these proved insufficient in the majority of cases. Every claimant had the express right to present supporting evidence to the special master through documents and witnesses, following hearing procedures yet to be determined, and to be represented by legal counsel.

ATLA published an invaluable 300-page handbook to guide volunteer TLC attorneys. It explained eligibility requirements and the applicable law and regulations, and it provided an analysis of the loss calculation tables. TLC lawyers were required to have at least five years of legal experience, including having litigated a minimum of 15 personal injury, wrongful death, or other significant cases. To guide these volunteers, I participated with TLC President Larry Stewart and a cadre of other ATLA members in a series of packed training seminars. Claimants, understandably, wanted local counsel—a need TLC helped fill from state trial lawyer association members.

The final DOJ regulations were published on March 7, 2002, together with an interpretive statement from Special Master Kenneth R. Feinberg. These incorporated key compromises and brought significant insight, but not always clarity, to the application process and compensation criteria.

In death cases, absent persuasive evidence, all noneconomic loss (pain and suffering) would be treated the same and would be subject to deduction for collateral source income but not for charitable gifts. For economic loss, the regulations included a presumed loss methodology accompanied by tables fashioned by the DOJ. Despite these guidelines, Congress had placed no cap on any claim award, nor was there any limit to the gross amount the special master could spend on the claim awards as a whole.

From its inception, the VCF came with an articulated but undefined condition: The special master should consider the DOJ’s presumptive loss tables but could deviate based on individual claimant circumstances. It was anyone’s guess what extraordinary circumstances would compel the special master. Inevitably, ensuring the awards obtained justice for claimants became the central focus of TLC’s experienced advocates.

By March it was apparent that it would take more time to identify and ready the lead cases, and I decided to extend my stay for another three months. At the same time, the director of the FDNY Counseling Services Unit offered my wife (a licensed professional counselor) a job. For two weeks in April and again in May, Susan traveled to New York to provide counseling to the families of the 343 FDNY firefighters lost on 9/11 and countless firefighters who spent their off-shift days combing through the pile at Ground Zero for anything that might identify “the missing.” At the end of the day we would return to our apartment, each with stories of immeasurable sorrow, struggle, and resiliency, and we would share a big hug and often a good cry.

By the end of April, the TLC team identified 34 likely lead cases and counsel. Every participating claim representative and counsel had to consent to inclusion. It is impossible to fairly summarize each case, but all presented unique circumstances for the special master.

As the lawyers, our vital task was to keep the humanity in the case, while fulfilling several primary objectives: to give credence to the legal language and repeated statements of the special master promising consideration of each claimant’s individual circumstances; to demonstrate that the DOJ’s presumptive loss tables were only a floor for assessing the true loss; and, most important, to maximize the economic security of all claimants, whatever their circumstances.

As a group, the decedents and injured were highly diverse in gender, race, nationality, citizenship, age, and known religion. It was vital to show the depth and strength of their family relationships. Many were single, with and without children. Most were married, often with children of all ages. One young man died unmarried, without children, but left behind brokenhearted parents. There were two domestic partners. A few were within years of retirement but planning to continue working elsewhere.

There was a passenger on the plane that attacked the Pentagon. A single mother also killed at the Pentagon had left behind a seven-month-old daughter. A divorced executive assistant with no children had supported her adult brother with mental disabilities.

Several of the selected cases would test the noneconomic award presumptions for pre-death pain and suffering and life-altering injuries: The resident architect for the Port Authority, credited with freeing 28 employees trapped on the 89th story of the North Tower and last seen prying open an elevator door on the 78th floor; an FBI agent from New Jersey who responded to the towers when he learned of the crashes on his radio; the assassinated copilot of Flight 11; a security guard rescued alive from the rubble but who died three days later; one of the first EMTs to arrive at the site before the buildings imploded; and four firefighters, three dead and one who sustained a disabling respiratory injury from breathing the toxic air.

The TLC lead cases launched the VCF. Until claim awards were decided, it was all a hypothetical construct hoping for fairness.

Sixteen lead cases were unveiled in closed hearings in early July 2002. A few weeks later, eight more lead cases were similarly presented. By every measure, the lead cases were an undeniable success and set the path for every case to follow. To his abiding credit, Special Master Feinberg looked beyond the presumptive tables. He listened to and considered the compelling circumstances as told by family members and friends. He willingly reviewed the economic potential of everyone who perished and everyone whose life was indelibly altered by injuries. The lead case awards were all in excess of the tables—and the sense of closure, however incomplete, was unmistakable.

On completing my service with TLC, I took one case with me as claimant’s counsel. Lauren Manning had worked for the financial services firm Cantor Fitzgerald in the North Tower. As roughly 8,000 gallons of jet fuel sloshed down the elevator shafts and ignited, Lauren was standing below with her back to the elevator doors. When the doors opened, Lauren was engulfed in flames, sustaining burns over 83% of her total body surface—73% third-degree burns.

She had an 18% chance of survival. But, with a remarkable medical team and sheer force of will, Lauren survived—and then persevered. Ten months later, improving but still a consummate patient, she and her husband, Greg, wanted my help. I had never handled a burn case in my practice, but I could hardly say no.

Lauren’s submission to the VCF took nine drafts and nearly a year to compile. It relied on voluminous medical records, horrifically revealing photographs, and attestations. To help, Katherine Pringle, an attorney from a corporate New York City law firm, joined the team and took the laboring oar on more than her share of essential tasks, handling countless things I never could have accomplished effectively from Boise.

At Cantor Fitzgerald, Lauren had been a limited partner in her forties. She excelled at everything she did and was destined for unrestrained success. Her projected future income loss was off the charts. But the core of her claim was noneconomic. As of her claim filing, Lauren had spent 184 days hospitalized, experienced 89 in-patient and out-patient tissue grafts and surgeries, received 108 steroid injections and 56 blood transfusions, and worked daily in physical therapy like an Olympian.

Over her expected long life, every day she would need to wear special pressure garments, use prostheses for her fingers, and apply creams and ointments over her scarred body. She could anticipate many more steroid shots, skin grafts, other surgeries, and continuous therapy. On the nonmedical side, she and her husband would need years of child care for their small child, as well as the new baby they were planning with a surrogate mother. Lauren received one of the largest awards from the VCF. Not long thereafter, Jagger Manning was added to the family.

When the VCF closed to applications on Dec. 21, 2003, more than 1,700 victims and victim families were represented pro bono by nearly 1,100 TLC attorneys. For those inclined to measure justice simply by monetary awards, what TLC lawyers accomplished for their clients was righteous. But as all good lawyers know—certainly those who filled the ranks of TLC—the success of their labors is best defined by bringing dignity and a modicum of lasting relief after an unforgettable tragedy, so that the sentiments of a life worth living can regenerate. This was our greatest accomplishment.

Bill Mauk and TLC volunteers on his last day at the TLC office in New York City.

I cherish the six months I spent in New York—the people I came to know as much more than victims, the benevolent lawyers with whom I share a special bond, my dedicated friends at the TLC office, the anonymous New Yorkers who opened their hearts to Susan and me. When we visit the memorials that now fill the footprints of the former Twin Towers, I touch the engraved names of those I remember. Every September 11th, I call my brother telling him I’m glad he’s alive. We were all in this together. Never forgotten.

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Bill Mauk is the founding partner of Mauk, Miller, Hawkins in Boise, Idaho, and can be reached at bill@idahojustice.com.

 

Editor’s Note: The VCF was reactivated twice after its initial creation, and in 2019, the fund was permanently reauthorized through Oct. 1, 2090. For more information, visit https://www.vcf.gov.