What Is Life Worth?
After 9/11, Kenneth Feinberg had to answer that unanswerable question
Published in 2008 Washington DC Super Lawyers Magazine — March 2008 on August 13, 2009
The images still wake him at night. The smoke, flames, falling bodies. Like all of us, Kenneth Feinberg was shaken by 9/11. Like none of us, he was asked to put a monetary value on the suffering of survivors and family members of victims.
Feinberg, the lawyer who headed the 9/11 Victim Compensation Fund, which was established by Congress just days after the disaster, spent three years distributing money. He sat down with injured survivors and families of the dead and listened to their stories. Many wept. Some pounded the table. Widows told of wonderful husbands. Parents showed family photos and videos. Children shared memories of moms and dads. “Legal skills were a very small part of it,” Feinberg says. “It was more important to listen, to empathize and to commiserate.”
He had a blank check from Congress; his only restriction was not to offer the same amount to every person. Early on, he decided to cap awards for family members of victims at a few million—“I don’t think Congress intended anyone to get $12 million,” he says, noting that the affluent families were the only ones who had a problem with that policy.
As the deadline for applications approached in late 2003, Feinberg sought survivors who had not filed. To reach out to undocumented immigrants, he hired translators to convince them that they would not be deported if they filed. He went to London to meet with the families of foreigners who had died. Eighteen-hour workdays were the norm.
In all, Feinberg met with 1,500 families. “The 9/11 work consumed 90 percent of my professional life for 33 months,” Feinberg says.
It consumed a good portion of his psyche, too. During hearings with groups of families or meetings with individuals, he’d often have to take a break. “I’d hear stories that were so tragic that I’d just have to take an adjournment and walk around the block for a few minutes. I needed to clear my head,” he says.
At home in Bethesda, he’d toss and turn and fight the urge to wake his wife Diane for comfort. He hoped the money he was disbursing would change lives. He knew the experience was changing his.
Feinberg grew up a middle child in blue-collar Brockton, Mass., where his father was a tire salesman. He wanted to be an actor after graduating from the University of Massachusetts, but his father persuaded him to study law as a fallback. “If there was ever an example of a lawyer’s career that could not have been planned, it’s mine,” Feinberg, 62, says.
After graduating from NYU Law School in 1970, he clerked for Stanley H. Fuld, New York’s chief judge, and served for three years as a federal prosecutor. Working alongside him was Rudy Giuliani, who became a close friend.
A lifelong Democrat, Feinberg worked as Sen. Edward Kennedy’s chief of staff for two years, then left to open the Washington office of New York firm Kaye Scholer. For the next decade he worked in litigation and consulting. Mediation was the furthest thing from his mind. Until 1984.
That was when federal judge Jack B. Weinstein asked him to mediate a complicated Agent Orange class action suit filed by Vietnam veterans. A compliment, sure, but Feinberg had never mediated a case. He had never even taken a mediation course. But Weinstein thought Feinberg was smart and competent; just as important, he was a Washington insider who had the political savvy to deal with Dow and other chemical company defendants, along with the Veterans Administration and the plaintiffs. The case settled in six weeks and Feinberg’s career changed forever. He was suddenly one of the nation’s leading experts in mediating complex civil litigation.
“In effect, I helped create a whole new area of practice,” he says. “I love the work because when you are mediating or negotiating, you’re in the driver’s seat.”
Over the years, he worked as a consultant, mediator, arbitrator or court-appointed special master in cases involving asbestos, DES, Dalkon Shield and many other headline grabbers. In 1992, he started his own firm, the Feinberg Group, which has offices in Washington and New York.
“Sophisticated mediation is not simply about splitting the baby,” he says. “You’ve got to be creative in finding ways to bridge the gap between the parties.” Besides creativity, he became known for occasional impatience and abrasiveness, scoffing at other lawyers’ reluctance to come up with solutions.
When Congress authorized a fund to compensate the injured and the families of the 9/11 dead, Feinberg was an obvious choice. He refused to accept any payment: that way victims could not accuse him of making money off the process.
Feinberg worked out a formula that based awards on each victim’s potential future earnings—the same principle by which judges and juries award damages every day in American courts. Except, as Feinberg notes, “I was judge and jury.”
The early meetings with survivors were difficult. “I forgot I wasn’t dealing primarily with other lawyers,” Feinberg admits. He soon realized that most families didn’t care about the money. They just wanted to talk about their loved ones.
One young widow was due $1 million. “I want more,” she told him. “And I want it within 30 days.” She explained that she had cancer and her husband had been preparing to take care of their two small children when she died. Feinberg gave her more money, and within 30 days. Seven weeks later, she died.
Feinberg authorized 5,300 awards totaling more than $7 billion. The largest, $8 million, went to a survivor who suffered horrific burns. The average award to a family of someone who died exceeded $2 million. Despite his warnings that they would probably end up with less, 94 families rejected the awards and sued privately. Almost all of those suits have been settled or dismissed.
Feinberg is still bothered by the 13 grief-stricken people who lost relatives and were entitled to compensation but never filed a claim or a lawsuit, even after he visited their homes. “I begged them to fill out the applications,” he says, shaking his head. “I said, ‘I’ll fill it out for you, and all you have to do is sign it.’ They’d say, ‘Just leave it on the kitchen table and go.’ And they never filled it out.”
After sending his final report to Congress on Nov. 17, 2004, Feinberg could have used his newfound fame to sign a bevy of new clients. He was certainly in need of the income after three years of volunteer service. But the job had changed him, and he faced what he calls “a professional crisis.” He couldn’t see himself returning to his traditional practice, even with the prospect of more work, higher fees and more headlines.
He scaled back the Feinberg Group from 30 people to seven, with only two other lawyers, one in New York and one in Washington. He founded the Feinberg Institute for Life, Value and Compensation Studies, wrote a book, What Is Life Worth? and agreed to teach at UCLA, Georgetown, Penn, Virginia, NYU, Columbia and elsewhere. And he took more pro bono work.
One such case involved the aftermath of the Virginia Tech shootings. Soon after the incident, campus officials asked Feinberg to manage distribution of the Hokie Spirit Memorial Fund, which included more than $7 million in private donations. This was different from working with the 9/11 plaintiffs. Here, the amount of money was limited. It was private rather than public money, and payments would be charitable gifts. The families were not giving up the right to sue, and awards did not have to be determined individually. Feinberg worked out a formula that provided $212,000 to the families of each of the 32 victims.
He went to Blacksburg and listened there, too. One student described how the killer shot the student on her left, the student on her right, and ran out of bullets when he aimed his gun at her. “While he’s reloading, she escapes out the window,” Feinberg says, shaking his head, at the randomness of life and death. “Out of bullets,” he says quietly, “or she’s dead.”
Looking ahead, Feinberg could be a popular appointee in the Justice Department of the next White House, no matter who wins the election. Until then, Feinberg will continue to ride the law school circuit, speak, take clients as they interest him. He doesn’t hear from the 9/11 families; they are trying to move on. But one family remembers him every year on the anniversary. They send him flowers and candy.
“My administration of the 9/11 fund provided me with first-hand on-the-job training in understanding the soul of America,” he says. “Whatever flaws there may be in the collective personality of our nation, the American character includes an overwhelming generosity and degree of compassion unmatched by any other country at any other time.”
Timothy Harper is a journalist and author based at www.timharper.com. A nonpracticing lawyer, he teaches at NYU and CUNY and serves as an editorial and publishing consultant helping individuals and institutions write and publish books.