Daily Journal – David S. Casey, Jr.
It is hard to grasp that we are nearing the tenth anniversary of 9/11. Images of that horrible day, when thousands of innocent victims died in the first foreign attacks on U.S. foreign soil since World War 11, remain fresh and indelible in our minds.
While the death and destruction it caused are incomprehensible, what many don’t realize is that this horrific disaster paved the way for the most important – and largest – pro bono effort in the history of American Jurisprudence: Trial Lawyers Care, a program developed by The Association of Trial Lawyers of American (ATLA). The program, in which hundreds of attorneys from almost every state in the country – and in Canada, England, Mexico and Australia – joined forces to provide pro bono services to families of victims of 9/11 offers a shining example of how the legal profession can work together and make a positive difference.
In fact, the program exceeded everyone’s wildest expectations – in terms of participation, results and efficiency – and when all was said and done, 1,745 claimants were represented free of charge. More than 1,100 attorneys participated, including 40 from California, succeeding in securing awards of more then $2.2 billion. The average death award was more than $2 million, the average injury award was nearly $50,000, the value of the pro bono legal services provided exceeded $300 million dollars, and the hours donated by attorneys totaled more than 100 years. Nearly 100 percent of the families of a deceased victim participated. Within 2 ½ years all cases were closed, and the families fully paid.
The genesis of Trial Lawyers Care was driven by a tragedy of unprecedented proportions. According to “Thousands of Heroes: The Rest of Us Could Only Help,” a Report to Congress from ATLA, the events of Sept. 11 were not a mass tort — a negligent infliction of harm – but premeditated mass murder. Whether negligence might be attributed to the airlines or other parties paled in comparison to the terrorist’s cold-blooded criminal acts, the report states. Moreover the civil justice process was hindered by inadequate insurance. Since total liability insurance on all possible defendants was significantly less than the likely losses, it was believed that a plaintiff with the best day in court would win only a few cents on the dollar – after many years of litigation. This outcome would not be just, as most family’s required immediate financial assistance.
When it became clear that Congress would bail out the airlines, ATLA’s position clearly emerged. “If you are going to bail out the airlines, you have got to save the families,” said Leo Boyle, who was president of ATLA at the time, and played a key role in the formation of TLC.
For all of these reasons, immediately after the attack, the executive committee of ATLA (now known as the American Association for Justice) was convened to seek a solution. Less than thirty-six hours later, ATLA called for a moratorium on any lawsuits related to the attacks, marking the first time in the history of the trial bar that such a moratorium had been requested. ATLA then encouraged the enactment of the September 11th Victim’s Compensation Fund – the most generous compensation program since Medicare was enacted in the 1960s – an idea which was conceptualized, written and enacted into law within a record breaking seven days.
With the creation of the Fund, ATLA pledged that it would provide free legal representation for all September 11th victim families. ATLA and state trial lawyer associations then joined forces to launch the non-profit Trial Lawyers Care Inc., essentially a clearinghouse through which trial lawyers would provide pro bono legal services to families eligible to file claims with the Fund. Trial Lawyers Care (TLC) set up shop in a state office building in lower Manhattan several months later, and a major fundraising effort was soon underway. Training was arranged and volunteer attorneys provided with a 500-page manual. But not just any attorney could volunteer for TLC. Participants had to have been licensed to practice for at least five years and have tried or settled at least 15 personal injury, death or other related cases – if not, they were supervised by an attorney with the necessary expertise. Attorneys from out of town had to be able to travel long distances to meet clients, and clients could request a new attorney at any time. And at no point could they benefit financially.
For a myriad of reasons, representing clients before the Victim Compensation Fund was a completely unique experience in the professional life of most of the participating attorneys. There were no legal precedents to consult and when lawyers entered the hearing room, they were not confronted by an adversary arguing the other side of the case. Not surprisingly, it was by no means a simple process. Since there was no legal precedent to turn to, lawyers faced many challenges in calculating awards and counseling clients. Participating attorneys would also eventually have to learn the substantive law in 11 countries and 35 states, as each country and state has different laws as to who constitutes an heir.
For the sake of efficiency, the comprehensive process to reach and assist victims included multiple steps: attendance at meeting after meeting to explain the Fund and the availability of free legal services; creation of a knowledgeable legal resources team to assist attorneys; a campaign to ensure claims were filed by the December 22, 2003 deadline; creation of specialized software to track claimants and attorneys; and development of a 30-member staff to ensure the various steps were carried out in a timely and high-quality manner.
Yet despite its complexity, for most attorneys, participating in TLC was infinitely rewarding and marked the pinnacle of their careers. “This experience has been one of the most significant accomplishments in my legal career,” said Benjamin Bunn, the former president of the Consumer Attorneys of San Diego. “Virtually every lawyer I know who has participated agrees with me that this has been the most rewarding thing they’ve ever done.”
Kenneth Feinberg, who was appointed by the Attorney General to be the special master of the Victims Compensation Fund, oversaw the fund without compensation for 2 ½ years, and called its contributions an “incredible public service.”
According to Connecticut attorney Richard Beider, who was president of TLC, the program – which officially closed in June of 2004 – enabled hundreds upon hundreds of families to better cope with the aftermath of 9/11.
“The assistance provided by these attorneys and others to victims has been unprecedented in American history,” said Bieder. “It is gratifying to realize the extent to which Trial Lawyers Care lawyers – and other volunteers – mobilized to help these families persevere.”
Representing the victims of the September 11 terrorist attacks was a massive and incredibly worthwhile undertaking, involving the time, talents and expertise of thousands. It was the legal profession’s way of contributing and giving back to our society at a time of desperate need, and ultimately helped speed the healing process for these grieving families.
Indeed, speaking at the annual ATLA Convention in 2004, the honorable Stephen Breyer, Associate Justice of the Supreme Court, said Trial Lawyers Care is “about what’s best in our profession. It is a profession with a spirit of public service. It is a profession that tries to help; it is a professional that responds when asked to help.”
David S. Casey, Jr. is past president of the Association of Trial Lawyers of America (now Known as the American Association for Justice) and a senior partner with San Diego-based Casey Gerry Schenk Francavilla Blatt & Penfield, LLP. He was vice president of ATLA and on the executive board which helped form Trial Lawyers Care in the aftermath of 9/11, and helped oversee its conclusion in 2004 while president of ATLA.