The Largest Pro Bono Effort in History
New York lawyers show TLC after 9/11
Published in 2011 New York Metro Super Lawyers magazine
By Nyssa Gesch on September 20, 2011
“It was something personal with me because I was across the street,” says Stephan H. Peskin of Tolmage, Peskin, Harris, Falick. “I saw the second hit. I smelled the smells.”
“You’re reading about it, and you’re watching the news, and you feel somewhat helpless,” adds Anthony Bisignano of The Bisignano Law Firm. “You’d like to make some type of a contribution.”
“[The New York State Trial Lawyers Association] headquarters was, and still is, three blocks from ground zero,” says David B. Golomb, of the Law Offices of David B. Golomb. “Our staff, in fact, was literally sheltering people who had come in off the street from the site.”
Ten years ago, as workers and volunteers made their way to ground zero to aid 9/11 survivors, the city’s lawyers also scrambled to help.
What started there turned into the largest pro bono effort in history.
Golomb, along with Leo V. Boyle of Boston, then-president of the Association of Trial Lawyers of America (ATLA, now the American Association for Justice), Larry S. Stewart in Miami, past-president of ATLA, and Richard A. Bieder of Bridgeport, Conn., founded Trial Lawyers Care (TLC), with more than 1,100 attorneys across the world taking on cases for more than 1,700 families spread around the country and the globe.
“This was invented in the early morning hours when Congress was passing [the Victim Compensation Fund], and for the first time in American history, they were doing away with the jury system on significant numbers of claims,” says Peskin, vice president of TLC. “But before we would allow that to pass, we wanted some input into it and so we put together Trial Lawyers Care to make certain that at least the people had an advocate. That part of it worked out very well.”
The September 11th Victim Compensation Fund of 2001, created by Congress on Sept. 22, 2001, allowed families of 9/11 victims to apply for awards while waiving their rights to sue the airlines. TLC was created to help those families. Participating lawyers rendered services free of charge.
Golomb became the point man in New York, where TLC was headquartered, responsible for securing office space in a Manhattan courthouse. There was also the recruitment of attorneys, which involved sending out emails, mailings and faxes, along with communication throughout online Listservs, and at meetings and conventions. “[The response] was enormous. It was great to watch,” says Golomb. “We had hundreds and hundreds of lawyers volunteering.”
Peskin helped by recruiting attorneys in person. “I would go into court, in the courtrooms where lawyers congregated for case assignments to be sent out to trial,” he says. “The judges would allow me to make a speech asking for volunteers. And, God, I had defense attorneys volunteer. They came from every stratum. As long as the person had met the experience qualifications that we had set up [they could participate]; and if not, they would have to agree to share the burden with an experienced attorney until they got one under their belt, and then they would be able to do the next one themselves.”
TLC offered CLEs for participating attorneys to help them prepare to present briefs before Kenneth Feinberg, special master of the Victim Compensation Fund. “Ultimately there was a complete set of procedures and regulations that were put out by Department of Justice, so what we did was we evolved a teaching manual. Literally a loose-leaf manual that contained complete sets of the rules and regulations and procedures,” says Golomb, who taught some of the courses. “A lot of our teaching was based on that, and also suggestions on how to get the best possible results in particular cases and things like that.”
“David was a monster force in putting together TLC,” says Marc M. Dittenhoefer, partner at Blank, Goolnick & Dittenhoefer, and a member of the board of directors of NYSTLA for the last 15 years, who also helped with training sessions. “And as part of leadership of the trial lawyers [with NYSTLA], I had a lot to do with supporting that organization from an organizational standpoint of view.”
Not everyone who applied for help from TLC ended up going through with their applications to the fund. Dittenhoefer was assigned three cases and each fell through: One person was afraid, incorrectly, that applying to the fund would affect his immigrant status; one wanted to maintain a private lawsuit; and another, unable to come to terms with the situation, let the case lapse.
“You prepared the case as if you were preparing a case in any other circumstance,” Dittenhoefer says. “There was sometimes an awful lot of work to do to maximize the award, to flesh out the medicals, or the psychological damages or the loss of earnings—there was a lot of economic projection, a lot of numbers, a lot of calculations and in-depth analysis of what the loss of a person meant to a family or to survivors who had depended on this person.
“And it was more intensive, and, because of the emotional overlay, a lot harder to deal with than your standard premises case, automobile case or labor law case,” he continues. “Every time you picked up the file, there was sort of an emotional flashback to that day.”
While coordinating such a large number of attorneys was challenging, the group was still able to get claims filed quickly.
A New Zealand woman whose husband died on 9/11 called the organization just 72 hours before the deadline for claims. “We got ahold of a lawyer in Australia who agreed to represent her, provided we could get him an American counsel to talk him through the process. We had a lawyer in Hawaii set up for this and we made the deadline,” Peskin says.
Feinberg played an instrumental part in meeting the deadline. “We worked hand-in-glove with Mr. Feinberg. It was that last night to file the paperwork: He stopped the clock at midnight. He was a real gentleman,” Peskin says. “We were on the phone, back and forth: ‘How many do you have on intake?’ ‘Oh, I have, I don’t know, 1,600 in this,’ and I said, ‘Well, I have 1,703.’ He says, ‘Steve, we’ll go with your number, whatever it is, just get them in to me. And we’ll use those numbers.’ So we were able to maximize the results so that more people were covered in that initial go-round.”
While many of the claims were submitted as briefs, others were presented to Special Master Feinberg in hearings. Peskin knew the first hearings would set the bar for those to follow, and he focused on putting together a group of heavy-hitting attorneys to take on the 12 lead cases.
“They were important because they helped Feinberg to interpret the regulations as applied to individual cases,” says Paul Scrudato, partner at Schiff Hardin, who had one of the lead cases. “There were a lot of issues popping up in the first 20 cases, which obviously were going to impact the thousands of cases to come.”
Peskin, who participated in two hearings and helped with the 18 cases his firm took on, led with the first case, representing the widow of a security guard who worked at Deutsche Bank, across the street from the towers.
The hearing, says Peskin, was “scary as hell. … I had a job more than representing a client: I was representing the system so that the system could be pushed to its limits—so it would be as fair as possible, as fair as a jury would be to an individual who had lost a loved one or who had been seriously injured. Otherwise, these people were going to be put into a cookie-cutter mold where the government had a grid set up. You know: ‘You’re so many years of age, you have so many dependents, you died, you had injuries. Alright, let’s draw the graph. You fit into that cubbyhole.’ Well, clients are not widgets and they don’t fit into cubbyholes easily.”
The first case was a perfect example. The husband and wife had never had day care for their daughter. He worked the day shift, while she worked the night shift. The wife’s job was the better paying of the two and provided the health benefits their family needed. But when her husband died, the question stretched beyond the mere economic contribution of the husband. “What about the tangential issues when the wife loses her position in order to try to fill the shoes of the husband?” Peskin asks.
In addition to the economics of the case, attorneys had to be mindful of the great emotional stress the families of the victims suffered. “I represented some firemen and some city workers who were injured on the site of ground zero,” says Bisignano, who took on six cases with TLC. “But it was the death cases that I found to be the most emotional. We were dealing with the families and in a lot of circumstances, they had not recovered the actual bodies of their loved ones. Dealing with the families was a very, very emotional situation.”
Peskin’s office is located in the red zone, across from the World Trade Center, so his meetings with the widow were scheduled elsewhere; she didn’t want to be near the place. Her first visit to the site, in early 2002, with her 3-year-old daughter, came about after Peskin received special permission to view a private memorial set up on the roof of Fire Station No. 10. “The little girl brought a flower and a picture of her daddy. And the fire station was directly across the street from the bank,” Peskin says. “The kid takes the flower and goes up to the chain-link fence and pushes the flower through the fence, which separated the fire station from her dad’s bank.
“A week later, [the widow] calls me, hysterical, ‘They found Frank. I should’ve come earlier. He was only waiting for his flowers.’
“As I tell you this now, I get goose bumps,” Peskin continues. “It was just a mind-boggling, emotionally draining experience.”
Scrudato represented Mario Santoro, a 28-year-old EMT who was one of the first EMTs to arrive at the scene. “He got there, I think, a couple of minutes after the first plane strike, before the second plane strike, and he immediately went to work helping people out at the site,” Scrudato says.
“As he got the dispatch to head over to the World Trade Center, he called his wife, Lenore, to say, ‘I’m going over to the World Trade Center. Don’t worry about it, I’ll be fine.’ It was probably a 30-second phone call and that was the last time they ever talked,” Scrudato says.
Santoro, an EMT who had been on the scene of several well-known incidents in New York—including the Carnegie Deli murders in 2001—had shown immense compassion in his job. “Regular people would write to his boss after calls to say: ‘What a wonderful guy. He did everything to relieve our anxiety about whatever led to the reason for the call,’” Scrudato says.
Scrudato estimates he spent 250 hours on the case and says that wasn’t rare for other TLC attorneys, either. “Everybody was honored to do it,” he says. “Everybody. The time it took was never an issue for anybody.”
The immensity of his case hit Scrudato when he met Santoro’s daughter, Sophia. “She was just a kid. She had no idea what had happened,” says Scrudato, who had two young daughters at home at the time. “Lenore, the wife, she was great. But she knew what was going on. Little Sophia had no clue, so I felt like I have to get this right for this little girl.” The work paid off. Scrudato was able to secure close to $2 million for Santoro’s family.
Many of the TLC attorneys still have strong emotional connections with their clients. Among Bisignano’s six cases was one representing the family of Jennifer, a young executive at Merrill Lynch who was a victim at the World Trade Center. Ivy League-educated, Jennifer was ambitious and made her mark in the financial world early on. “She was—from the time that she was born to the time of her death—one of those people who made a difference in people’s lives,” says Bisignano.
Bisignano submitted the materials as a brief and secured an award of about $1 million. But he appealed. “The difficulty centered around the fact that the actual compensation to a single person by the Victims Compensation standards was much less than that of a married person,” Bisignano says. “What I set out to do was to prove that there was an actual engagement and an eventual marriage that was going to take place, and requested that she be treated [as if she had] marital status.”
A key to the successful appeal was unearthed when Jennifer’s parents sorted through her personal belongings. “They dug up some of the love letters that took place between [her] and her boyfriend,” Bisignano says. “In one of those letters, there was a discussion about the promise of marriage and how she was looking forward to having his children and building a life together.
“I made the argument that the marriage and the family was inevitable and that these two people were young and in love with dreams of a very promising future,” says Bisignano, who secured more than $4 million for the family after the appeal.
Eric Turkewitz of The Turkewitz Law Firm, dealt with a similar issue in one of his two cases. He represented a woman whose fiancé, in addition to providing income from his job, had been invaluable around the home—cooking, painting the apartment, helping with her bus tour business. “Without his being there, she would have to go out and hire another individual, so she was suffering this economic loss,” says Turkewitz.
Turkewitz worked closely with another attorney, who represented the fiancé’s children, to ensure the awards for the woman and the children were separate. “We agreed that, whatever the number was, it would get divvied up in a certain fashion, regardless of how Feinberg would make the award. … We didn’t want to have a surrogate’s court battle and we didn’t want the children and the fiancée to be at odds with each other—they had already gone through enough trauma.”
His second case involved a woman who suffered a head injury as she tried to escape from one of the lower buildings. “The DOJ had thrown a bit of a barrier up into the way of somebody who had clearly suffered a debilitating psychological injury,” says Turkewitz. “One of the towers, I believe, came down while she was in an ambulance trying to get away from the scene. This was a series of cataclysms that took place, four separate things that kept escalating: first one plane, then the other plane, then one tower, and then the other tower.”
“Both of the cases took perhaps more time and energy than many of the others, but both were rewarding experiences because ultimately I was able to get recoveries for both of them,” Turkewitz says.
In June 2004 TLC sent a report to Congress.
“One of the highlights was … the compliments we received from the people that called us the tasseled, loafered, ambulance chasers,” Peskin says. “By and large, everybody said that we had done a yeomen’s job. In fact, Trial Lawyers Care was the single largest pro bono effort ever undertaken in the history of the country. That’s something to be proud of.”
It’s a sentiment echoed by other TLC attorneys.
“I think it was the proudest moment of my legal career,” Golomb says.
“I got more back from doing this than receiving any fee could have given me,” Bisignano says.
“It was one of those times in my career,” Scrudato adds, “where it felt great to be a lawyer.”
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