Local lawyers who helped 9/11 victims recognized
Twelve Minnesota attorneys were among those providing legal support and assistance

By Barbara L. Jones
May 9, 2005
Reprinted with Permission of Minnesota Lawyer

Minnesota lawyers who contributed pro bono representation to victims of the terrorist attacks on Sept. 11 were recently recognized by Kenneth Feinberg, special master of the victim's compensation fund, at the Minnesota State Bar Association's Civil Litigation Section annual meeting.

Feinberg, an attorney in Washington, D.C., who addressed the group on "Lessons Learned from the 9/11 Fund Arbitrations," told attendees: "I will go anywhere in the United States to pay homage and tribute to my profession and how it rose to the occasion on Sept. 11. ... I'm in your debt."

Lawyers who participated said the experience was well worth the time and effort.

"It was one of the best legal experiences of my life," Minneapolis attorney Gregory M. Weyandt told Minnesota Lawyer.

Trial Lawyers Care

The American Trial Lawyers Association (ATLA) formed Trial Lawyers Care (TLC) shortly after Congress established the September 11 Victim Compensation Fund of 2001, Publ. L. No. 107-42, on Sept. 22. About 1,600 lawyers from across the country, including 12 from Minnesota, handled claims for what ATLA calls the largest pro bono project in the history of American jurisprudence.

The law placed the fund's claims process under the authority and control of a special master, whose decisions would be final and not subject to judicial review. Awards would be made for economic and noneconomic loss. The statute did not set limitations or caps on the amounts of the awards issued by the fund, either individually or in the aggregate, and awards were obligations of the U.S. government. Thus Congress had no control or influence over the fund, which was not dependent upon or subject to its appropriations process.

Trial Lawyers Care and other lawyers began drafting rules immediately; ultimately deciding economic losses would be based on a "Presumed Loss Methodology" as codified in a set of tables established by the Department of Justice. However, the special master was empowered to take individual circumstances into consideration.

The valuation of noneconomic loss among the various claimants in death cases presented a problem, Feinberg said at the annual meeting, so he decided to give the identical awards to everyone: $250,000 for the decedent, plus an additional $100,000 for a spouse and each dependent. That meant "every one of the families was up in arms against me because I was so cheap," he said with a laugh.

The law creating the fund also said that the balance of the awards should be based on economic loss and said some collateral sources (generally life insurance) should be deducted. Those provisions created hard feelings for some families, who thought that the administrators of the fund were saying that their decedents were "less valuable" because they earned less money or had purchased insurance. But by and large the administrators of the fund were able to demonstrate that the statute required such a calculation, he said.

The regulations also said that the claim had to be filed by the personal representative of the estate or by the person eligible to be the representative under the intestacy laws of the decedent's domicile, said Feinberg. Only about 20 percent of the persons killed on Sept. 11 had wills, he noted. Some families disputed the selection of representative, Feinberg said, "but we worked out most of them" by sweetening the pot.

"The biggest single problem we had was that we decided that every family member who wanted a hearing should have one," he continued. "I personally conducted 915 hearings."

The hearings generally were motivated by a desire to tell the story, not necessarily to talk about the money, he observed. "The stories I heard defied imagination. ... [They were] chilling beyond belief," he said, noting that many survivors played the answering machine tapes of their loved ones saying goodbye.

In 33 months, the fund distributed about $7 billion to about 5,300 claimants, according to Feinberg. The fund paid about 97 percent of all the known eligible claimants, he added.

Eight-five claimants are litigating their claims; nine failed to file or refused to file, usually for reasons attributable to grief and depression, he said.

(Many of the claimants were connected with their attorneys and others who worked on their cases by volunteers. Catherine Ryan of Minneapolis, now a Hennepin County District Court law clerk, donated her time providing such connections as an administrator for TLC while she was in her first two years of law school.)

While the average claim was $2.1 million, the claims generally ranged from about $500,000 to $7.3 million. One exceptional claimant, a survivor who was very seriously burned, was awarded about $9 million, said Feinberg.

The program was a success that should never be repeated, said Feinberg. "This was a one-off program, unique in American history as Sept. 11 was unique. That's the only way to justify it — from the perspective of the nation and the nation's reaction to this horror," he said.

He also recommended that any future compensation funds should not be based on economic loss.

"Don't make distinctions between a stockbroker and a janitor and a fireman and make me into some kind of Solomonic H & R Block," said Feinberg.

Family breakups

St. Paul attorney James Ryan handled two cases that illustrated some of the family conflicts that arose over the compensation. In one case, the decedent was a fireman with a spouse and three children, but his parents also wanted to make a claim for the money, said Ryan. Their reasoning was that the decedent had been a part of their lives for a longer period.

This type of story was not unique, said Ryan. People couldn't get past their grief and anger and as a result families broke up. Eventually the parents filed their own claim, which Ryan assumes they lost.

Ryan also became involved in another case with a family dispute. In that case the decedent was a bachelor in his mid-50s survived by a brother and sister who hated each other, he said. The brother was appointed administrator of the estate, but wouldn't communicate with the sister, so she needed a separate lawyer. They ultimately shared the award 50-50.

That decedent had a heroic story, Ryan continued. He had an opportunity to leave the World Trade Center, but refused to do so because he was with a friend in a wheelchair who could not escape. He was talking with his sister on the telephone when he died, Ryan said.

Ryan's law partner, Anne Brown, represented a woman whose image became very familiar when a photograph of her wearing a business suit covered with ash standing amid debris was widely circulated after the bombing. She suffered post-traumatic stress and severe orthopedic injuries, said Ryan. The death cases were actually easier to resolve than the injury cases because of the cost and inconvenience of obtaining certified medical records as well as doctors' testimony, said Ryan.

Rochester attorney Paul Dahlberg also handled a personal injury claim. His client was a pregnant woman who happened to get off a bus in front of the World Trade Center and was trampled in the ensuing chaos. She suffered complications and had to be on bed rest, although she ultimately delivered a healthy baby.

Her claim initially was denied on the grounds that she had no permanent injury and had no proof she was at the World Trade Center. However, she and Dahlberg were able to produce a witness who helped her get medical assistance. In addition, the hearing officer asked the examiner very detailed and specific questions about the geography of the area in Manhattan and ultimately was convinced.

In fact, Dahlberg's client was awarded more than she requested and also was very happy to be heard, he said.

Weyandt represented a survivor with serious psychological injuries, such that she would not have been able to navigate the claims process on her own. Trying to get through the crowds in lower Manhattan, she entered the area near the World Trade Center and was buried when the first tower fell. She was able to extricate herself and walk north although she was bleeding and only half-dressed.

The woman has since purchased a burial plot and never goes anywhere without a facemask and water, Weyandt said.

The issue at the hearing was whether or not she was physically in the eligibility "zone" created by Congress when she was injured. At the time of the attack, she was not in the zone but she walked into it, noted Weyandt. She showed the hearing officer the purse and a newspaper she was carrying that morning and the officer found that both were covered with "a fine white particulate," he said. The officer increased her award.

The woman continued to experience trauma after Sept. 11 because although she is Russian, she looks Arabic and was physically harassed on more than one occasion for being "Osama's daughter," Weyandt added.

Weyandt's client bought him a briefcase that he exhibited to the civil litigation section. "I carry it as a badge of honor," he said.

But one Minneapolis attorney reported a less positive experience with the hearing process. James Hovland represented the survivors of a custodian at the World Trade Center. Having a hearing was a very important cathartic experience for his client, said Hovland, but the officer, an administrative law judge, had little interest in the case. He asked Hovland why a lawyer from Minnesota would take on a New Yorker's case and also commented, "I suppose you're Norwegian." The officer then asked Hovland if he brought lutefisk on the plane, and when Hovland said no, the officer said, "They might have thought you were a terrorist."

Hovland was completely thrown off his stride, he said. "I just stood there with my mouth agape." Although his client was successful in increasing her award, she was very dissatisfied with the process, feeling the officer had insulted Hovland and didn't care what she said.