Lawyers Said to Back Compensation Plan to Polish Image

By WILLIAM GLABERSON

Trial lawyers, frequently called vultures or worse, have been confounding their critics since the Sept. 11 terrorist attacks, offering free legal services to victims, promoting a federal compensation program as an alternative to court and declaring a novel national moratorium on terrorism-related liability suits.

But some traditional allies of the lawyers - and some lawyers themselves - are asking whether what seems to be public service is really just public relations by a group that fears vilification if its members profit from the attacks.

Some critics have said the leaders of the Association of Trial Lawyers of America, the trade group for the plaintiffs' lawyers, has been so focused on polishing its membership's image that they have forsaken their role as aggressive advocates.

"They are playing a political game to preserve future political capital for future issues, so they are sacrificing the families," said Mitch Baumeister, a plaintiffs' lawyer in New York who represents more than 40 people who lost family members in the attacks.

The debate provides a glimpse of the internal battles that shape policy in one of the most powerful lobbying forces in the country. Because trial lawyers give millions of dollars in political contributions yearly, their state and national organizations have long had great influence in Washington and state capitals.

Association leaders helped draft the proposal for the federal victims' fund and have enthusiastically supported it, even as some victims have criticized proposed rules that they say will limit awards.

Lee S. Kreindler, a plaintiffs' lawyer who specializes in airplane disaster suits, said the trial lawyers' leaders had let down the Sept. 11 victims. Mr. Kreindler said he was particularly disappointed that they continued to promote the fund after the federal special master, Kenneth R. Feinberg, proposed rules last month that Mr. Kreindler said would mean awards to victims were going to be far less than they typically were in court.

"If they support the fund now, then I don't see how they can call themselves trial lawyers," Mr. Kreindler said. The rules are to be completed this month. Victims' representatives are lobbying for more generous treatment from Mr. Feinberg.

Leaders of the lawyers' group said they were convinced that most awards would be fair. They added that they had consistently urged larger awards and were planning new efforts in coming days.

"Every shred of influence that we have is 100 percent directed to the best recovery for the victims," said Leo V. Boyle, a Boston lawyer who is president of the lawyers' association.

The leaders of the group say they are offended by suggestions that they are motivated by image concerns. They proposed the victims' fund, they said, to ensure that victims would be treated fairly when Congress approved the airline industry's request to limit suits against the airlines. The lawyers thought of offering free legal services, they said, because that was how they could best help victims.

"The notion that we're not doing something today on behalf of the victims for some abstract future political benefit is utter fiction," Mr. Boyle said.

On Friday, Mr. Feinberg, who was appointed by Attorney General John Ashcroft, called a reporter to defend the Association of Trial Lawyers of America, known as ATLA. "Those who are critical of my system and ATLA are being terribly unfair to ATLA," he said. He added that the lawyers' leaders had "been extraordinarily helpful to me."

Mary Lynn Tate, a plaintiffs' lawyer in Virginia who has helped plan the association strategy in Washington, said the assertion that the group was trying to do anything other than help the victims was "just an outlandish misunderstanding."

Ms. Tate, a member of the group's executive committee, said the association leaders did not focus on image issues as they plotted strategy.

But experts who study the lawyers' lobbying said the association's public strategy since Sept. 11 had been unusual. In seeking to influence government, the lawyers have often followed a far more private strategy, said Tom Burke, a specialist in law and politics at Wellesley College.

Mr. Burke said plaintiffs' lawyers had long been divided about public campaigns. But he said the possibility of a furious reaction against lawyers' trying to cash in with suits involving the Sept. 11 attacks gave those urging a more public strategy an opportunity to try a different approach.

"The thinking is, `This is a public relations disaster for us in the making, and we've got to do something,' " Mr. Burke said.

Some legal experts who typically side with the trial lawyers said the calculation of the group's leaders may come back to haunt them. The experts said that by supporting the legislation that established the compensation fund and protected the airlines from unlimited liability, the trial lawyers have given credibility to the concept of protecting certain industries from lawsuits.

The compensation fund is already being discussed by business lobbyists as a possible model for other injury cases. In this approach, injured victims would not have to prove fault, as they would in court, but would receive less than they might be awarded by a jury.

That no-fault approach has generally been opposed by trial lawyers for decades because it provides an alternative to suits and often means curtailed legal fees. People who apply for aid through the Sept. 11 fund forfeit their right to sue over the terrorist attacks.

Carl T. Bogus, a professor at the Roger Williams Law School in Bristol, R.I., said that by so enthusiastically agreeing that the courts would be ill equipped to deal with Sept. 11 injury cases against airlines and others, the trial lawyers' leaders had abdicated a role that they typically play of explaining how the civil justice system can work.

"The question," Professor Bogus said, "is whether, by agreeing to a no-fault, no-trial, no-accountability system to avoid being demonized, they have given up their critical role as champions of the civil justice system, victims and the public."

Mr. Boyle, the trial lawyers' president, said some critics were mistaken in measuring potential awards under the fund against jury verdicts in typical liability cases. The fund, he said, will not be like liability verdicts, but like "a government relief program for crime victims" that should be compared with social service programs.

He said it was absurd for anyone to argue that the compensation program was a model that could be applied to future mass-injury cases, because the Sept. 11 fund would function more like compensation for a criminal act. Mr. Boyle also said he had been offended by the suggestion that his group had been worrying about the image of lawyers in a time of crisis.

Ms. Tate, who helped plan the strategy, said: "We live with whatever our public image is every day. So that couldn't be a factor."

Facing the Limits of Law, and of Lawsuits September 21, 2002

By PHILIP K. HOWARD

When establishing the Victim Compensation Fund last year, Congress foresaw a potential legal nightmare. It thus imposed one condition before victims of the Sept. 11 attacks could receive money from the fund: They had to waive their right to sue anyone except the terrorists. But recent claims suggest that Congress did not go far enough. It should reconsider whether lawsuits arising over the events of Sept. 11, other than those against the terrorists, should be allowed at all.

Last week, lawyers for one of the firms hardest hit by the attacks, Cantor Fitzgerald, issued a report claiming that the planned allocations of the fund are contrary to law. The family of a young trader should be given $5 million for lost income, they argue, not $3 million. The decision by the fund's special master, Kenneth Feinberg, to give every family an additional $250,000 for pain and suffering, they say, is "woefully inadequate."

So far, some 30 families have filed lawsuits against the airlines (claiming they should have done more to stop the terrorists) and against the Port Authority of New York and New Jersey (alleging it should have better evacuated the buildings). Hundreds of the families are considering similar claims. The City of New York has been hit with over 1,500 claims, including 1,200 by firefighters who argue that their equipment was inadequate to protect them. These claims alone total $9 billion.

There is no logical limit to these lawsuits, or indeed, to others that readily could be brought. Nearby residents also suffered significant damages. Probably millions of people in the region breathed air with toxins. Businesses in New York suffered huge losses. Thousands across the country lost their jobs. Why shouldn't they be able to sue?

The moral authority of the victims' families is overwhelming. No one even wants to argue with them, much less deny them anything. But it is beyond the capacity of litigation to produce a just or fair result here. Dollars can support a family but can't ever make up for the loss.

Some victims say they seek not money but the truth. One widow who lost her husband on a hijacked United Airlines flight has said that, by filing a lawsuit, she hoped to reduce the chances of another attack. She knew she couldn't bring her husband back, she said, but the lawsuit gave her "a new purpose and a goal in mind, something to hold onto and to fight for." But what happened here is not a mystery: terrorists exploited the conventions of an open and free society to commit an act of mass murder.

Allowing this litigation comes at a high cost to society. The airlines employ tens of thousands of workers and are integral to the national and world economy. Is it in our common interest to drive them out of business? Billions sought from the City of New York would come out of schools, health care and other common services. Is that fair?

Perhaps the greatest cost of allowing these claims, as we teeter on the edge of decades of litigation, is to the fabric of our culture. The recriminations are potentially endless. Open the door to litigation over fairness after a mass tragedy, and no one will ever be satisfied. Bitterness has already begun to fester. Why should the family of a bond trader receive $3 million, asks the family of a kitchen worker, when they receive only a fraction of that? The harder we strive to satisfy each person's claim to fairness, the greater will be the perceptions of unfairness. What about deserving victims elsewhere, like the father who drowned last year while saving three children from the flooded Mississippi? Is his family less deserving than that of someone who happened to work at the World Trade Center?

There is no right answer, no point of true justice, no correct box to fill in. On behalf of society, someone must simply make a choice. This is the proper job of the special master.

For casualties of war, Congress has prescribed a set schedule of benefits. Among other modest benefits like a gravestone and funeral costs, the family of a soldier lost in war gets a "death gratuity" of $6,000, the proceeds of a life insurance policy of as little as $200,000 and a pension for widows of at least $10,000 per year. No lawsuits are permitted, even if the decision of the commanding officers was negligent or a piece of equipment failed. The families get an American flag to honor the loved ones who died to protect our freedom.

An important lesson of Sept. 11 is that Americans must come together and face the future with a new awareness of our risks and responsibilities. Descending into a pit of litigation and recrimination cannot satisfy the families of victims; their loss can never be satisfied. But this litigation will harm all of society.

One of the virtues of law is finality. To focus our energies on the future, Congress must bar civil litigation seeking to place blame for the devastating events of the past.

Philip K. Howard, a lawyer, is the author of "The Collapse of the Common Good" and "The Death of Common Sense."

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