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Intensive Care

David Hechler
Staff reporter
The National Law Journal
06-28-2004

It was a recipe for disaster; a job of impossible proportions; an undertaking without precedent.

It became the largest pro bono project in history, and one that is now widely praised.

Trial Lawyers Care (TLC), born of a simple desire to help victims after the Sept. 11, 2001, terrorist attacks, exceeded nearly everyone's expectations. It provided free legal services to those who filed claims with the Sept. 11th Victim Compensation Fund, which issued its final awards on June 15. Though TLC's final numbers aren't in, a few statistics tell the story:

More than 1,000 lawyers donated their services through TLC, some from as far as Canada, Mexico, England and Australia.

They helped more than 1,700 individuals. About 1,000 were related to people who were killed, the balance were people who were injured.

The average death award, based on the latest data, was more than $2.1 million. The average injury award was $496,000.

When the calculations are completed, TLC estimates it will have secured awards of $2.2 billion. If lawyers had charged 15% contingency fees, they would have earned more than $300 million. The hours they devoted aggregate to more than 100 years.

Many of the lawyers say they felt privileged to be able to help, and found the experience the most rewarding of their professional lives.

Mary Lynn Tate of The Tate Law Firm in Abingdon, Va., represented the family of a single mother killed in the Pentagon who left a 6-month-old baby behind.

"I think I felt like I needed to do it," she said, speaking for many who expressed similar sentiments. "By 'need' I mean a desire to find a way to use my skills against that kind of evil."

"I knew I wanted to do something after Sept. 11," recalled Mark O'Connor of Herzog and O'Connor in Scottsdale, Ariz. "I just didn't know what in the world I could do." What he did was represent six families that received awards.

He remembered his first visit to meet clients in the TLC offices in lower Manhattan. It was July 2002.

"He's just in from Phoenix," a TLC official told a potential client.

"Where in New York is Phoenix?" she asked, unable to fathom that help would come from so far.

Help also came from the defense bar. Jason Criss and partners in the New York office of Washington's Covington & Bur-ling helped recruit and organize what became a consortium of 19 firms. Nearly all were elite defense firms, though plaintiffs' securities firm Milberg Weiss Bershad Hynes & Lerach (as it was then called) was among them. All worked together to represent families of firefighters, police and other uniformed personnel. Criss and others eventually joined TLC, but many of the 80 lawyers who represented 144 families did not.

They began offering services in 2001 for whatever legal work families needed, whether filing claims, obtaining death certificates or fending off credit card companies, Criss said. Criss has spent 873 hours assisting families and working with the consortium; his firm has donated more than 6,000 hours-about 75% of it attorney time, he added.

But the largest contribution, and much of the compensation fund's success, has been attributed to TLC.

"Trial Lawyers Care is one of the primary reasons the program was successful," said Kenneth Feinberg, the Victim Compensation Fund's special master.

An outpouring of volunteers

The concept took shape immediately after Sept. 11, when leaders of the Association of Trial Lawyers of America (ATLA) began talking about what they could do. Many of their thoughts were articulated by Leo Boyle, ATLA's president at the time. In recent videotaped interviews made for a film that will be shown at ATLA's annual convention in Boston next month, Boyle recalled those days.

The first move was to declare a moratorium on lawsuits. Boyle e-mailed ATLA members shortly after the attack. He received "several hundred" responses thanking him, he said.

"We realized that the legal system couldn't handle this particular nightmare," he explained. "It was a mass murder. It wasn't a mass tort." When it became clear Congress would bail out the airlines, ATLA's position coalesced: "If you're going to bail out the airlines, you have got to save the families."

By the time Congress created the compensation fund, ATLA, in collaboration with the New York and New Jersey state trial lawyer associations, had already created pro bono services-at least in principle.

"If a firefighter can rush into a burning building and lose his life for someone he doesn't even know, the least I can do as a trial lawyer is go in and represent his children for free," Boyle declared.

Again he e-mailed members. Within one business day, 1,000 volunteered. But recruiting was the easy part.

Within days Larry Stewart, an ATLA past president, was working to launch the project. The challenges were daunting. In hindsight, John Bailey, TLC's executive director, called the very idea "a recipe for disaster." Stewart spelled out why in his videotaped interview.

"We had no office, no staff, no money, no policies and no experience," he recalled. "And those are the kind of situations trial lawyers work best in." Three weeks later, TLC was up and running. In short order, they arranged training and provided lawyers with a 500-page manual.

Some early policy decisions proved crucial. Neither the volunteer lawyers nor their partners could benefit financially by later participating in a lawsuit related to the attacks. And lawyers had to prove themselves not just willing but able. They had to pledge that they'd been licensed to practice for at least five years and had tried or settled 15 personal injury, death or other significant cases-or would be supervised by an attorney who had. Out-of-town lawyers had to be willing to travel to meet clients. And clients could ask for new lawyers at any time.

One lawyer who devoted himself to the enterprise was Lawrence Kelly of Stony Brook, N.Y.'s, Glynn & Mercep. Kelly worked with more than 20 families that sought his counsel, and spent substantial time with more than 10, he said. In December 2002, he argued the first death claim filed by the family of a high-income individual-a vice president of operations at Cantor Fitzgerald. At the time, many families, fearing these awards would be minimized, were considering bypassing the fund and suing. In April 2003, Kelly's clients were awarded $5.3 million, allaying many of those fears.

Injured firefighter's hearing

Last month, on the last day of hearings, Kelly was still on the job.

"Sean Hickey is a firefighter who on Sept. 11 was doing what we all wished we could do: finding the victims," Kelly said, introducing his client to hearing officer Kimberly Moore in a cramped conference room in the New York offices of PricewaterhouseCoopers.

A broad-shouldered man with thinning red hair and wire-rimmed glasses, Kelly rose and showed Moore a framed photograph. It was taken by a Reuters photographer on Sept. 11, he explained, and showed a dozen firefighters searching for bodies under "the pile." Kelly pointed to one he identified as Hickey, who had led the first crew and found a path through darkness, water and rubble.

Seated next to his lawyer, Hickey is 43 with a brown moustache and hair swept back from his forehead. His right fist was planted against his chest-as though his arm were encased in an invisible cast. This was the primary physical symptom of his injury. On Sept. 11, Hickey hyperextended his right shoulder trying to pull a body from under the beams. He slammed it back and kept working, Kelly said.

His injury was diagnosed as reflex sympathetic dystrophy. His right arm is useless and he's in constant pain, Kelly said. He also has pulmonary injuries and is mentally, emotionally and financially drained. His marriage fell apart and he moved to California to escape. "Just coming here is to battle everything that he's tried to put at bay," Kelly told Moore, whose regular job is assistant U.S. attorney in North Carolina.

Retired from the department on a permanent disability pension, Hickey was given a "presumed award" of $125,000, Kelly said in an interview. The fund issued these awards to move cases. When clients accepted them, nothing further was required. When they didn't, they could file for hearings.

"The initial award from the fund showed the complete inadequacy of the methodology without a person," Kelly told Moore. "This case rises to the level of loss of the death cases."

When he asked his client to speak, Hickey had a difficult time focusing. Under Kelly's questioning, he described a life he called "a living hell." His insurance coverage isn't accepted in California, he said, and he can't afford counseling or physical therapy. He can only pay for some of the medication doctors have prescribed. He stopped his car on a New York bridge once and considered jumping before police talked him out of it. "I saw it as the only way to pay off all my bills," he told Moore.

"I think the lucky guys died," he said. "Because at least their lives moved on."

Shortly before the hour-long hearing ended, Moore addressed Kelly. "I will take this back to the fund and see what we can do for Mr. Hickey." Then she turned to his client.

"Mr. Hickey, I wish you well." She paused, her eyes shining. "And I want to thank you for what you did there."

"Everyone thanks me," he said. "I didn't do anything. I didn't find anyone alive."

Last week, Kelly was told that Hickey's award, after offsets deducted for his pension, will be $955,464.

"You ask yourself why you want to be a lawyer," Kelly said, summing up his TLC experience. "And then something like this comes your way, and you understand."

As rewarding as the experience was for some lawyers, it also proved challenging, said John Jeannopoulos, TLC's director of attorney services. It was not the traditional adversarial system, but it did require advocacy. It was literally unprecedented, so lawyers had a hard time calculating awards and counseling clients as to what to expect. Attorneys weren't limited by rules of evidence, but they had to present cases to hearing officers in an hour. "There's no class in law school that teaches this," Jeannopoulos said.

In addition to the training, Jeannopoulos and others provided support over the phone and through a secure Web site. Lawyers shared tips by e-mailing each other on a secure listserv. Psychological counseling was available for lawyers who needed it. And the staff used customized software to track cases.

"They were phenomenal," Benjamin Bunn said of the TLC staff. "You can't imagine the resource they were."

Bunn of San Diego's Hulburt & Bunn helped recruit about 25 San Diego lawyers who collectively handled about 35 cases, he said. Even their experts donated their time.

Special Master Feinberg, who had previously overseen the Agent Orange and Dalkon Shield litigations, called the compensation fund "the most complicated, thorny program I have ever been involved in. And not because of the substantive problems," he said, "but because of the emotion associated with 9/11."

Feinberg, who worked for the fund without compensation virtually full time for 2 1/2 years, called the contribution of TLC "an unbelievable public service.

"It encouraged hundreds and hundreds of families to come into the program," he said. "I am personally in TLC's debt, and frankly the fund is in TLC's debt."