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It was an assignment Kenneth Feinberg actively sought, knowing that it would prove challenging. But he did not anticipate how consuming it would be. The job was special master of The September 11th Victim Compensation Fund, the program created by federal legislation to compensate victims, and families of victims, injured or killed in the terrorist attacks — provided they relinquished their right to sue. The challenges for Feinberg during his 33 months of toil, which he elected to perform entirely pro bono, were monumental. Far more than a mere administrator, Feinberg wrote the preliminary regulations, solicited comments and criticism, which came in torrents, and worked his revisions into the final version. He then launched a public relations campaign, appearing on television and holding more than two dozen town hall meetings with families — all to convince them to file claims. Some days the 59-year-old lawyer felt like a salesman, he said; other days, like a priest. Sometimes he called upon skills he honed as a law professor, explaining the regulations and the limits of his discretion; other times he would have been better off trained as an accountant. When he met with families and listened to people awash in pain, he felt like a psychiatrist. Families that were unhappy with an award could appeal in a nonadversarial, informal hearing at which they presented witnesses, documents and anything else they wanted hearing officers to review. Feinberg personally presided over more than 900 of the 1,600 hearings. $7 BILLION IN AWARDS When it was over and he had delivered his final report in November, which detailed awards totaling $7 billion and the participation of 97 percent of the families, he rated it “the most complex, convoluted problem I’ve ever experienced.” This from the lawyer who had successfully mediated some of the most complex mass torts, including Dalkon Shield, breast implants, asbestos and Agent Orange. There was one very large difference between the other cases and this one, Feinberg said. “I was up and running eight or 10 weeks after 9/11 instead of seven or eight years after Agent Orange.” He wasn’t dealing with lawyers in a courtroom. He was facing families immediately after they’d experienced the unimaginable. “The emotion was the difference,” he said. The Agent Orange case posed problems regarding causation; 9/11 was simple by comparison. But there was no doubt in Senior Judge Jack Weinstein’s mind which of Feinberg’s assignments was more difficult. “In war terms, Agent Orange was equivalent to a broadside from 21-inch guns of a battleship,” said Weinstein, a former Navy lieutenant who presided over the Agent Orange case in the U.S. District Court for the Eastern District of New York. “[The compensation fund] was equivalent to an atomic bomb,” he said. “He was probably the only person in the country who could have carried it off,” said Weinstein, Feinberg’s friend and acknowledged mentor. Larry Stewart, the first president of Trial Lawyers Care, the huge group of plaintiffs’ lawyers who represented many of the families pro bono, added: “I can’t imagine anything that would be more difficult than what he went through.” Particularly bruising was the early and very public criticism Feinberg endured at meetings, in the media and on Web sites. Some of it was personal: He was described as gruff, aloof, arrogant. It was unlike anything he’d experienced, he acknowledged. “I took it for what it was: an expression of anger, frustration, grief, disappointment at the unfairness of life,” he said. He was the only government representative at whom families had an opportunity to vent. “I understood that. It goes with the territory. “When a firefighter widow says to me, ‘I don’t get it. You’re giving me $1 million. My husband died a hero at the World Trade Center. And you’re giving the banker’s widow $3 million. He represented Enron on the 103d floor. How dare you demean the life of my fireman husband!’ That’s what I mean when I say it goes with the territory.” Some of the criticism was salutary, Feinberg said. In response to comments from families, he doubled the amount awarded to each surviving child and spouse to $100,000. He initially intended to deduct from the awards the charitable contributions that families received, as he was obliged to do for life insurance payments. But after charities informed him that they would withhold as much as $2.5 billion until the fund had cut its checks, he changed his mind. Had he recognized the emotional component sooner, he said, he would have opened a dialogue with families even before the regulations were promulgated. But some problems he was powerless to control. “The idea of giving grieving families different amounts of money-there was an assumption in my mind that that will absolutely guarantee divisiveness among the very families you’re trying to help,” said the lawyer, who retains the accent of a youth spent in Brockton, Mass. (a suburb of Boston). “And I was right about that.” If something like this is ever done again — and he doubts it will — he would rather see survivors receive flat payments, he said, that do not curtail their right to sue. SWAYING THE CRITICS Two of Feinberg’s harshest critics eventually came around. John Cambria filed a lawsuit on behalf of the families of seven people killed in the towers. It claimed, among other things, that Feinberg had acted arbitrarily when he imposed a de facto cap on the highest earners. Feinberg had said that fairness demanded he lower awards at the top and raise them at the bottom. Though Cambria’s suit was thrown out and he never changed the special master’s mind, he came to admire the job Feinberg did. “I think he did a fabulous job,” Cambria said. “He was extremely sympathetic and empathetic.” He believes his clients were treated fairly and they agree, he said, even though they appeared before the man they had previously sued. Charles Wolf, whose wife died in the north tower, created a Web site called “Fix the Fund.” His lengthy critique included this comment about Feinberg: “He has been patronizing, manipulative and at times, even cruel.” By December 2003, he had renamed the site “The Fund is Fixed!” The first link is a letter to Feinberg. “To have one of your sharpest critics follow through on a promise and not only join the program he was criticizing, but promote it to his peers, says a lot about you and the way you have adjusted both the program and your attitude,” he wrote. “Today, I have complete faith in you.” Feinberg was once an administrative assistant to U.S. Senator Ted Kennedy, D-Mass., and spent a dozen years in the Washington office of Kaye, Scholer, Fierman, Hays & Handler before founding The Feinberg Group, also based in Washington, in 1993. The firm specializes in alternative dispute resolution, and he cited one of ADR’s bedrock principles when asked to explain the fund’s success. “Perhaps the single most important decision we made in the regulations was not content,” he said. “It was procedure: the right of any individual family to come in and see me. “I would urge that any future program carry with it a mechanism permitting face-to-face meetings.” Nothing, he said, was more important to the families than the right to be heard.

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