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In 14 test cases decided last week, Kenneth Feinberg, the special master of the September 11th Victim Compensation Fund, demonstrated a level of generosity that augers well for the program, several lawyers from the pro bono organization set up by the Association of Trial Lawyers of America to represent victims’ families said Monday. According to Larry S. Stewart, the head of Trial Lawyers Care, Feinberg showed flexibility examining individual circumstances in fashioning 14 awards that averaged $1.8 million. The awards were 75 percent higher than those that would have resulted through a strict application of the presumptive formulas established by Feinberg, Stewart said. The awards “provide fair compensation” and “give the families financial security for the future,” Stewart said at a press conference Monday. The awards announced Monday ranged from $600,000 to $3.9 million for the families of 14 low- and moderate-income wage earners. The victims, whose cases were decided last week, included janitors, clerical workers and government employees, with only one having a salary in excess of $100,000. Because Feinberg, in setting tables establishing presumptive awards, limited his calculations at the 98 percentile of earned income in the United States, or $231,000 a year, the program has come under intense criticism from lawyers representing high-income clients. Feinberg has repeatedly said he has no intention of capping awards, but has also emphasized that awards in excess of $3 million or $4 million “will be rare.” Justin T. Green of New York’s Kreindler & Kreindler who represents 340 families, a number of them the survivors of high-income victims, said that no definite conclusions could be drawn from the 14 awards. It would be highly significant, Green said, if the 75 percent upward variance from the presumptive tables holds up in a larger sampling of cases. However, he expressed some doubt that will be the case. From the start, he said, Trial Lawyers Care has been among the “closest cheerleaders of the fund,” and had selected cases that presented special circumstances. Since only modest-income victims were involved, Green asserted, Feinberg could make a “big point” promoting the program “cheaply without putting too much on the line.” But Stewart stressed at the press conference that eight steps are involved in Feinberg’s computation of economic loss, and the special master had demonstrated flexibility in making upward adjustment at all levels where warranted by the facts. In each case, he asserted, the award was tailored to “fit the facts.” Last year’s ATLA president, Leo V. Boyle, who on Tuesday took over from Stewart as the head of Trial Lawyers Care, added that since Feinberg has been fair to low-income victims, there is no reason to doubt that he will be fair to those who had high salaries. Stephan H. Peskin, who handled one of the 14 cases, said Feinberg also had demonstrated flexibility in a different context. After initially being unreceptive to arguments that the loss of a father’s services by a 2-year-old child should be fully valued, Peskin said, Feinberg relented and provided generous compensation in that regard. FAMILIES HOLD BACK The debate over how generous the fund will be is important because families must give up their right to sue in order to file a claim with the fund. To date, slightly more than 600 families have filed claims. About 2,800 persons were killed in the terror attacks and another 400 suffered physical injuries. The fund will compensate physical injury but not isolated emotional trauma. At the press conference, two widows of Sept. 11 victims explained why they had decided to file with the fund rather than sue. Peskin’s client, Irma Bourdier, said she could not afford “to gamble” on her daughter’s future. “There is no guarantee with a lawsuit,” she added. Lenore Santora, who is now the sole parent of her 3-year-old daughter, said she had filed a claim to “pick up the pieces now and not wait 10 years.” The deadline for filing claims with the fund is Dec. 21, 2003. In the test cases presented by Trial Lawyers Care, lawyers brought in experts and their clients to meet with Feinberg to demonstrate where his methodology was inadequate in meeting the particular facts of their cases. In 53 other cases, where the families were in many instances unrepresented and made no attempt to argue for an upward adjustment, Feinberg issued awards that averaged $1.6 million. To date, 38 families have accepted those awards. Stewart said Monday that more than half of the 14 families had accepted Feinberg’s awards, and that by the end of the week he expects all of the families will have accepted.

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