‘Where is the justice?’

'Where is the justice?'
For families suffering losses from the terrorist attacks of Sept. 11, 2001, there is no easy answer to that question.

Kenneth Feinberg, however, tried his best to present a sense of uprightness, fair play and equity as he dealt with the staggering challenges in his role as Special Master of the Federal September 11 Victim Compensation Fund of 2001.

In the process, he learned how grief can permanently change people's lives.

Biggest disappointment

Feinberg was in Vermillion Oct. 24 to present the 28th annual Clark Y. Gunderson Lecture at The University of South Dakota School of Law.

In a speech entitled "The 9/11 Fund: Private Pain and Public Compensation," Feinberg described his three-year experience of overseeing the payment of over $7 billion to 5,500 affected families.

"This was unprecedented delegation to one person, and I was chosen," he said.

"The program was an unqualified success," Feinberg said. "Ninety-seven percent of all eligible claimants came into the fund. Today, there are only 85 people who elected to litigate rather than come into the fund."

Despite his remarkable track record while dealing with overwhelming challenges, Feinberg said his biggest disappointment lies with the seven eligible families who chose to do nothing.

"They never filed a lawsuit. They never opted into the fund," he said. "They sat on their rights and did nothing until the statute expired."

Feinberg said he visited most of those seven families, "and I learned a lot about clinical depression." He would practically beg these people to take action, to sign the form that would guarantee them millions of dollars of compensation, only to be told to go away.

"I lost my son; my life is over. I can't get out of bed," one woman told Feinberg. "And you're here to tell me about money?

"I learned a lot about how grief can paralyze people, and prevent them from doing the obvious," he said.

Congress' plan

Congress and the executive branch reacted swiftly and with high emotion following the 9/11 attack.

Eleven days after 9/11, Congress enacted a law signed by the president which gave any family who lost a loved one at the World Trade Center, on the airplanes, or at the Pentagon, or who was physically injured as a result of 9/11 the option of voluntarily signing up for a special, public compensation program funded by taxpayers.

People who signed up for this program waived their rights to file lawsuits against the airlines, the World Trade Center, the Port Authority, the Pentagon, and virtually every other party that was affected by the terrorist attack.

Congress delegated to one person the authority to design and administer the program. This person was chosen by the president and the attorney general.

"And they chose me," Feinberg said.

He likely the best-qualified person to take on such a daunting task. Feinberg, an attorney, is one of the nation's leading experts in mediation and alternative dispute resolution.

He has been a court-appointed special settlement master, mediator, and arbitrator in thousands of disputes involving a range of issues such as mass torts, breach of contract, antitrust and civil violations and various commercial and environmental matters.

He has a distinguished teaching career as adjunct professor at several top law schools in the nation, including the Georgetown University Law Center, University of Pennsylvania Law School and the New York University School of Law.

Four-part formula

The statute laid out a four-part formula based largely on tort law concepts, Feinberg said, on how to calculate the awards individuals received.

According to the law, his calculations were to be based on the economic loss of the victims.

The second part of the formula included non-economic loss, such as pain and suffering experienced by the victim, and emotional distress visited upon families.

Feinberg decided to adopt a blanket ruling instead of trying to determine damage awards on a case-by-case basis.

"I'm not Solomon," he said. "I made up my mind right at the outset that I'm not going to calibrate fine distinctions on economic loss. Three thousand people died, and there's the same pain and suffering, the same emotional distress, and I decided I am not going to play God and try to make distinctions on economic loss."

He decided to award $250,000 for the death of the victim and $100,000 for each surviving spouse and dependent.

"That ruling of mine had the great benefit of getting all the 9/11 families unanimously to oppose what I did," Feinberg said.

Congress then threw a curve ball, he said, that caused a firestorm. The third part of the calculation formula required that collateral sources of income, such as life insurance, had to be deducted from the 9/11 awards.

Many victims felt they were being penalized for sound financial planning.

The fourth, and highly unprecedented portion of the calculation formula, stated that Feinberg, after adding up economic and non-economic damages, and deducting collateral sources of income, shall "exercise his discretion to see that justice is done."

"What I often found myself doing," Feinberg said, "was looking into a murky crystal ball and trying to calculate what we'll never know what might have been.

"We did it. We set up rules. We did the best we could," he said. The source of one of Feinberg's unique challenges is the wording of the 9/11 statute.

"There is not one word in the statute � not one � about who gets the money," he said, "or who files the claim."

That lack of explicit instruction pit siblings against another. It caused battles among parents and children, and parents and spouses and lovers � in some cases same-sex lovers � of several victims.

To avoid getting caught up in a firestorm, Feinberg laid down a simple rule.

"We said if there is a rule, we will honor the victim's will," he said. "Only 20 percent of the victims had wills, so for the other 80 percent, we relied on state's laws of contestancy."

Most importantly, Feinberg said, he and others, including clergy, sat with families in dispute "and we worked it out."

There are only about a dozen families, he said, who couldn't come to an agreement. The money was awarded to them, and deposited with the court system, which eventually will decide who receives the settlement.

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