“Law’s Finest Hour,” Tort Lawyers and 9/11

Episode Notes

Transcript

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Intro: This is Workers Comp Matters, hosted by Attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases.  Nationally recognized Trial attorney, expert and author, Alan S. Pierce is a leader committed to making a difference when workers comp matters.

Alan S. Pierce: Welcome to this edition of Workers Comp Matters here on the Legal Talk Network.  I’m your host, Alan Pierce.  I’m with the Law Firm of Pierce, Pierce & Napolitano in Salem, Massachusetts.  I’m here this day with my co-host and my son and my law partner, Judson Pierce.  And today is the second of a two-part series dealing with the immediate aftermath of the terrorist attacks on 9/11 as we recently observed the 20th anniversary of this tragic event in our nation’s history.  Our previous guest on Workers Comp Matters was Ken Feinberg appointed by President George W. Bush as the Special Master of the Victim Compensation Fund.  Today, we are privileged to be joined by Attorney Lee Boyle, a nationally-known Trial attorney with the Boston firm of Meehan, Boyle, Black & Bogdanow.  Leo is a graduate of Harvard University in Boston College Law School and on that fateful day was president of ATLA, the association of trial lawyers of America now known as AAJ, the American Association of Justice.  Along with Kenneth Feinberg, Leo played a prominent role in helping to form Trial Lawyers Care, a massive pro bono effort to assist the families and victims of 9/11 to receive compensation from the newly enacted Victim Compensation Fund or VCF.  Leo, welcome to Workers Compensation Matters.

Leo Boyle: Well, thank you very much for having me on.  Judson and Alan, it’s a privilege to should be on your show.  First thing, I want to give you a shout-out Alan for your service to the bar and to the people we represent.  You’re a legend in the workers’ comp field and you’ve done so, so much for MATA.  So, I want to thank you for that.  It’s very much in keeping with the public service we are talking about today.

Alan S. Pierce: Yeah, that’s we are and coming from you especially, I appreciate that very much.  You know, Leo, we’re both about the same age.  So, we didn’t live through December 7 of ’41, but we certainly have lived through November 22 of ’63 and, of course, September 11, 2001 is this generations and our generations date that we all will remember to the day we die and more importantly, we will remember exactly where we were when we heard this news.  Where were you?

Leo Boyle: I was at home with my family when it came on television and I saw the second tower hit on television.  And so, I get my car and I headed to the office because I realized that everything had just changed for our way of life and our country, and I realized this has to affect the legal system.  There’s got to be a major impact on the legal system, and maybe the legal system can have a major impact on this.  And so, I headed to my office and I got a call from the office that the FBI was in our building.  So, our building was shut down.  So, I headed back to my mother’s nursing home actually to sit and try to explain it to her what had happened.  And so, I got a pretty vivid memory of that morning.

Alan S. Pierce: You were the new president of ATLA at the time.  Describe for us the nature of that organization and what were your initial thoughts about the legal challenges that would likely emanate from this tragedy.

Leo Boyle: Well, we are formed to preserve the right to Trial by jury unencumbered by special interest legislative favors for industry or insurance companies.  That’s the raison d’etre of ATLA as I used to call and I still do honestly and now the American Association for Justice.  That’s what we do.  We educate each other.  We collaborate on cases just as when MATA was formed for the very same reasons.  And what it positioned us to do was because of all the legislative fights we had gone through, we had very good friends on the show.  And so, we had access to go in and make a pitch for a solution to begin the healing after 9/11, which is exactly what we did, and we started on September 12 because, by September 12, the airline lobbyists were already in Washington lobbying for complete toward protections for the entire aviation industry, cutting off everybody’s rights.  So, our first executive committee meeting of ATLA was on the 12th of September —

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And that’s when we began to form a game plan.  And within a matter of days, we do — well, specifically, Wednesday, September 19, I was in DC.  I went down the night of the 18th.  Logan had just opened a day or two earlier.  So, I went down to DC.  And on the 19th, we sat down with Dick Gephardt in his office.  He was then the Democratic leader on the house side.  And in between the 11th and the 19th, the executive committee had come up with a plan to put into place, if we could get it, a compensation fund for the victims of 9/11.  We didn’t announce it until after the legislation passed.  We plan to do all of the work for free.  And one of the facts that’s lost on a lot of people is that one of the airlines said 1.5 billion in coverage and the other had 1.7 billion in coverage.  So, that’s a total of 3.2 billion.  But the property damage on the ground was more like 50 billion dollars to 75 billion dollars.  We were 3,000 deaths.  There are another 2,000 to 3,000 personal injuries.  So, it’s a very sort of rough analogy, but we’ve all gotten those cases in where you have an intersection accident this person runs a red light and kills your client and the person has a 2040 policy.  That’s exactly what we were confronted with after 9/11 except on a massive scale.  So, we had to do something.

Alan S. Pierce: You know, I’m glad you framed it this way.  As Ken Feinberg wrote in his book, ‘What is Life Worth’, which detailed his role and the overall response by Congress and by the lawyers to this event, it’s also depicted in the Netflix film, ‘Worth’.  And as he told us in his podcast with us not too long ago along with providing compensation for the victim, participation in the fund also carried with it the agreement by the recipients of the claimants that they could not and would not be able to file any injury or death lawsuits against — as you mentioned, the airlines and World Trade Center among others.  And as you were getting into this, somewhat seems counterintuitive to the mission of ATLA in the constitutional rights for jury trial for victims and access for trial by jury.  So, flesh that out a little bit more for us.  How was it that ATLA sprang into action to do something that would avoid lawsuits?

Leo Boyle: You are like a laser.  Let me start by saying that because I grew up in ATLA.  I joined in 19 — I became a lawyer in 1971.  I joined ATLA in 1973.  And growing up in ATLA what our Mantra was we seek no quarter and we give no quarter.  We never compromise on the jury system.  So, you’re absolutely right that this was ingrained in us that the right to trial by jury is in violet.  But this was different because if we left everything to the jury system, first of all, the property damage in the subrogation claims would have eaten up all of the insurance on the airlines and the security companies in the airports.  It would have been a Pyrrhic victory, and the executive committee of ATLA back then had, in my view, had the courage to say we’re going to step aside from our usual approach on this and every decision has to be made for the betterment and for the protection of these families, and we can’t protect them through the traditional jury system.  And the way I looked at it, this was not a mass tort.  It was a mass murder.  And once you start looking at what it really was — now, there were claims that could be carved out on inadequate security and the like, not a single one of those out of thousands of cases ever went to trial.  Everything went through the fund or settled apart from the fund.  I love that you have honed in just like you did because that was a huge issue, and we had members, the aviation lawyers who are very upset about the fund.  They came around and ended up representing families under the fund, and we had a lot of people who are afraid.  Will this become a template for medical mal in the future, for products in the future, for transportation torts in the future?  But we were in the moment and the one thing we knew is that we had 3,000 deaths, and we couldn’t leave them uncompensated.  So, we took out a big scary step for us and said we’re going to go with an alternate system for this.

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Now, if you didn’t accept the fund, you could sue the airlines.  You could go forward against the airlines.  You would be capped at the 3.2 billion of their insurance, but you could sue them.  You could sue all the security companies.  You could sue whoever you wanted to, but people came to understand that that would have been a pyrrhic victory.  You could also sue the terrorist and the countries that harbored the terrorist whether or not you went to the fund.  So, we gave people a choice, but my strong urge was for people to go to the fund.  And the reason is this I don’t know comp well.  You all and your listeners know it inside out.  In this fund, there are no specific benefits for different injuries and harms.  If you read the statute, it’s the most liberal, wrongful, death and personal injury statute you will ever read.  It’s even got hedonic damages in there.  Now, the reason it’s so liberal is that we wrote it.  At La Llorona, the guy named Dan Cohen, the late Dan Cohen who passed away, wonderful human being, he wrote the fund.  And on Wednesday, the 19th of September, I was at Tommy Boggs’ office with Linda Lipsen.  The draft of the fund came in by fax.  We send it over to Tom Daschle in the Senate and Dick Gephardt.  They were up all night, Wednesday night, in committee.  We got everything we wanted, every single thing we wanted.  So, it was wide open.  No caps, no limitation.  No caps even on attorney’s fees.  And the reason we wanted no caps on attorney’s fees is that we didn’t want that to become a template in federal law.  Now, we didn’t tell anybody until after Congress passed it.  We are going to do it for free anyway, and we got a lot of pushbacks from some of our detractors up in Congress about, you know, we’ve got to cap the lawyers.  They’re going to make all kinds of money on this.  And, you know, I took a lot of pleasure after the bill passed.  At about 11:00 p.m., Friday, September 21st, a letter went out over my signature to the members of Congress saying, by the way, we’re going to do this for free.  And it turned out, the fund paid $7 billion dollars, you know, compare that to the 3.2 that would have been available for everything including property damage.  Property damage could not go to the fund, just personal injury and wrongful death.  So, we got huge rewards.  There were $4 and $5 million Awards.  I don’t have the figure off the top of my head for the average Award, but they were very, very generous.  And the people who are afraid that the fund would become a template for some kind of tort reform, what happened was, the fund was so generous and Ken Feinberg did such a marvelous job administering it.  The Congress wouldn’t pass and I didn’t want to pass another one because you didn’t have to prove fault.  You just had to prove you were harmed or your loved one was killed on 9/11.  So, we took advantage of a no-huddle offense and went at it really hard between Wednesday morning, the 19th, and it was 60 hours from the time we put it into play until the time it came out of the house at 11:00 p.m. on Friday.

Alan S. Pierce: Yeah.  And Leo, what you described in very neat detail is the value of a national organization because, you know, lawyers are for the most part anywhere from sole practitioners to small partnerships to medium and large sized firms in each and every state.  So, tell me, you know, through ATLA, you formed an organization within ATLA to do this.  Tell us about TLC.

Leo Boyle: Sure, sure.  And just for your listeners, I mean, for your membership to holler, one of the things you get is probably the most powerful single lobbyists in Washington, D.C., Linda Lipsen.  She is the CEO of ATLA.  So, if anybody wanted as well should I pay my membership this year and should I stay in ATLA, you’re not going to leverage your money any better than the might that she brings to the hill.  Without Linda, we wouldn’t have had that access and that credibility.  When she knocks on the door of Dick Gephardt, he opens the door and listens and so did Tom Daschle and that’s how we got what we did.  And so, Friday night, the 21st, I came out of the house around 11:00.  I remember I was sitting on my suitcase in Logan.  I had flown home.  Carlton Carl from ATLA, our media person, was watching TV and telling me over the phone how the votes were going.  And once I got to, I think the magic number was 218.  I knew we were there.  And that night, we sent out the letter saying we’re going to do it for free.

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I’m calling for volunteers and by Monday morning, a thousand lawyers had volunteered to represent victims for free.  We ended up just the TLC volunteers, not the groups that worked outside and other bar associations.  Our group was responsible for about two-and-a-half billion dollars going to families.  We represented I think around 2,000 families, about half of those were personal injuries.  We had lawyers from 50 states, 5 countries.  They flew into New York, D.C. to meet with clients and to attend their hearings with Ken Feinberg.  Can himself probably heard?  He must have personally heard a thousand cases.  He was unbelievable.  And his appointment didn’t come until a couple of weeks after we got the bill passed in Congress, and Teddy Kennedy was a really big part in Ken getting that appointment because they were close personal friends and Teddy knew what a good job Ken would do and he did.  So, we went on to represent these families over the course of the next probably two years and it was such a credit to the bar.  People would spend hundreds of hours on their files that hire economists, that hire doctors if they were a personal injury involved.  They get affidavits from your boss if you’re about to get a promotion.  So, we could prove up the fact that, yeah, his wages were X, but they were about to be X plus 50% because this promotion.  Lawyers did exactly what they do and they did it for free.  It was a magnificent, magnificent performance by the bar.  The bar will never get enough credit for what they did.

Alan S. Pierce: Leo, it sort of reminded me of the historical event, Dunkirk, right, with all the ships going out and trying to save the soldiers.  All these lawyers from all over the country, really, really came to there, here to help victims and their families.  What unexpected challenges did you all encounter during that time?

Leo Boyle: Big challenge was getting people to sign up for the fund.  That was a big one because there was a segment of the bar that was fighting it and urging people not to sign up.  But the overarching issue was that people were — the whole country was just devastated by this.  People couldn’t get themselves together.  They couldn’t think.  So, we worked and worked for many, many months doing all kinds of radio things and TV things in New York City to try to get people to sign up.  And then, at the very end, it was just an avalanche of filings and people came.  And I think it’s something like 98% of the people came to the fund at the end.  And in terms of other difficulty, there was no difficulty getting lawyers.  I mean, lawyers are just such good people fundamentally.  Yeah, there’s a bad one now and then.  But the lawyers are in this business because it gives you the power to help people and that feels good whether or not you get paid.  It feels really good to help other human beings and that’s what makes lawyers tick and lawyers are risk takers.  We all know that, especially on our side of the verses.  You know, they’ll take on a case they’re not going to get paid.  They’ll fly to New York.  They’ll pay for an economist themselves because it’s the right thing to do.  A lot of them felt in the end, as did I, that it was one of the most meaningful things I’ve done as a lawyer.

Alan S. Pierce: In that, we may not have actually told our audience what TLC stands for.  It’s Trial Lawyers Care and that leads me to this other area I’d like to just briefly talk about.  This happened in 2001.  Our president was President George W. Bush.  One of his main themes, campaign planks, issues upon which he ran was what you touched upon is tort reform, capping non-economic damages such as pain and suffering, eliminating rights for trial rather than maybe some type of mandated arbitration, all sorts of other limits.  So that, at that time, I remember from my days here in Massachusetts on the local level.  Trial lawyers were being bashed left and right, not only did that poor lady who spilled the coffee in her lap become the symbol of what’s wrong with the Civil justice System, by the way, highly erroneously, if you know the facts of this case.  So, you know, at that time, the image of Trial lawyers specifically plaintiff, claimant, contingency fee lawyers was really in the crosshairs of the president.  Yet, so describe to me how important it was to have these funds be recognized, —

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Not only unanimously by Congress, but also by the Bush White House and to be able to work in concert with your and our sort of natural opponents.

Leo Boyle: Well, that’s a great question.  I would say it wasn’t an episode of lawyer bashing.  You know, I’m 50 years doing this now.  I can’t believe it, but I’m 50 years doing this, and almost all of that 50 years, the tort fight has been going on.  It started most heavily in the 80s is what it really got rolling and certainly in the 90s.  So, before Bush took office, it was a mantra.  It was a political mantra of certain components of society, industry, big business companies that didn’t want environmental regulations, didn’t want tax limitations.  So, he ran on it.  But you sort of had to run on the back then if you were running as a Republican presidential candidate.  And so, I think we do what we do and we don’t — I tend not to think about my detractors and I don’t care much about them.  I’m going to do what I’m going to do and let my actions speak for me, and I think most lawyers are like that.  You know, most lawyers, vast majority of us, work for ourselves and there’s a reason.  You know, we don’t answer to other people.  Nobody tells us what to do.  And so, he did run on that platform.  It was as unsuccessful for him as it was for politicians before and since because it is philosophically unsound.  You know, the extent to which he believed that himself I don’t even know, but it wasn’t coming from him.  It was coming from industry, and it’s always been there.  It was there in the in the 80s and the 90s.  It’s still there now, although it’s quite interesting in the Trump campaigns.  It was not a mantra of his campaign, which I found very interesting.  So, it’s kind of a fact of life out there that people try to detract, to disrespect lawyers, but you got to look at who’s doing the disrespecting and, normally, it’s the people that we hold accountable.  It’s no wonder they don’t like us and, you know, I hold that as a badge of honor.

Alan S. Pierce: One of the things that surprised me in our interview with Ken was that he didn’t think that this type of legislation or compensation fund might work ever again in any other type of situation even a traumatic one.  Do you share that?  Do you think that this could be a model for future, you know, large-scale tragedies or — yeah.  Ken was sort of saying as a matter of public policy to create a fund for one class of victims when there are tragedies before or after that don’t get funded.  So, it was a matter of policy.  How do you react to those comments?  Both Jud and I think we’re surprised.

Leo Boyle: Well, he’s always held that position, number one.  Number two, I love Ken Feinberg.  I love the guy.  I’ve done so much work with him.  I have enormous respect for him.  He’s become a personal friend, but he and I disagree on this point.  I don’t have the numbers in mind.  I would have looked them up if I knew the question was going to come up, but the entire fund cost $7 billion.  We just won down a war that cost $1 trillion, and we were probably spending $7 billion a month.  Now, these are wild guesses.  Please don’t hold them to me, but certainly in the course of a few months, we spent $7 billion on the war on terror.  Now, why should a completely innocent cross section of our population that happens to be sitting at their desk in a building pay the price for a terrorist attack that we’re going to spend a trillion dollars addressing?  Shouldn’t we take care of our own people?  Can I have always disagreed on that point?  In certain cases, it’s not the right solution.  Take asbestos, for example.  Those companies needed to be held and taken to task.  They needed to be put out of business.  They needed to have their insurance companies pay the price for what they did to Americans.  So, you need the tort system, but this was a mass murder, not a mass tort.  So, Ken and I disagree if a hurricane devastates New Orleans, federal money goes down there to help, billions of dollars of federal money goes down to help.  It’s the natural human instinct to take care of your fellow man.

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So, I disagree with Ken.  We even offered the legislation never got through, but the federal building in Oklahoma City that was bombed, if you remember that.  I don’t recall the year.  But the victims of that tragedy stepped up after this one to say, how about us, and we told Congress we’ll represent them for free.  You set up a fund for them.  We’ll take care of them.  We’ll represent them for free, but Congress wouldn’t do it.  So, I disagree with Ken.  We spend money on a lot of different things.  Look at the bailouts we just did, trillion dollars, couple of trillion dollars in bailouts.  Why would we not?  I mean, 365 firemen killed on 9/11.  We are not going to take care of them?  No, I’m sorry.  First things first.

Alan S. Pierce: Because this is workers comp matters, it became apparent quickly talking to Ken that the underlying foundation principle of the workers comp system was kind of mirrored and then expanded upon by the fund, and I know you folks, me and Boyle, certainly know workers comp because it’s connected to the work you do so well.  Give us your overview of how, you know, the general philosophy behind a workers compensation system of scheduled Awards, et cetera, might have served us some framework for the VCF.

Leo Boyle: Well, the beauty of workers comp is fault doesn’t matter.  If you’re at work and you get hurt, you don’t have to spend three years litigating the fact that the machine was badly designed as opposed to it being your fault and that fundamental principle that we’re not going to prove liability here gets you directly to damages.  So, it’s like the comp system.  Now, the numbers, much, much bigger because, you know, the comp system is just been so legislated over and over again, not just in 1914 or whenever originally was formed, but ever since then, there have been fights over certain limitations and the percentage of Average Weekly Wage.  I mean, you know that better than I do.  You know that inside out.  But the beauty of this is we had 60 hours to write a bill, and we went for everything and we got everything.  But you are absolutely right.  It is like the comp system.  We don’t prove fault.  Go write the damages.  The difference is the damages were unlimited.  Now, the Department of Justice pushback in regulations and started putting limits on some of the damaged components under the fund.  Even though the statute didn’t do it, they put a $250,000.00 max on pain and suffering, for example, on the wrongful death cases.  So, they, you know, they fought back but that’s because the bill we got was completely unlimited.  So, philosophically it comes from the same place that comp comes from.  If I’m at work and I get hurt, somebody’s got to take care of me.  I can’t go home and lose my job and lose my income and incurred medical expenses.  I got hurt at work.  And so, somebody’s responsible for that.  I might not get millions of dollars, but I’m also not going to lose my house.  I’m not going to get, you know, have my car repossessed.  I’m going to have something to live on.  So, I think that workers comp model is quite parallel.

Alan S. Pierce: Well, Leo, before we sign off, is there any thoughts you’d like to leave with us, any personal anecdotes to any particular family or victim that you or your colleagues represented that perhaps stands out to exemplify the aspirations of this fund?

Leo Boyle: It’s just so many.  About three weeks after 9/11, I was on the roof of a fire station next to the hole in the ground.  It was still on fire.  The remains of the towers was still on fire.  It was an underground fire, but the smoke was billowing up.  I was with the father of a woman who was on one of the planes, and she died leaving a husband and two little children.  He had come down with me to New York.  Paula Zahn was a TV reporter at the time, and she wanted to talk to a victim and he agreed.  So, we went down and he did the show, and then we went over to the site and we’re standing on the roof.  There was a fireman up there, and he looked at my client and came over and said, “Did you lose somebody?”  And Bop said, “I did.  I lost my daughter.”  And the fireman put his arms around him and said, “I’m so sorry.  I couldn’t save her.”  And, of course, he had no chance to save her.  She was in a plane, but he just felt this pain that as a fireman, he couldn’t save Bob’s daughter.

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There were a million moments like that that we saw and felt, and they just, you know, you never forget them.  It was an extraordinary time.

Alan S. Pierce: Leo, I really want to thank you.  Just as I, you know, Alan and I thanked Ken last time for what you did, what you continue to do really throughout your career, you know, we have heroes in movies.  We have Heroes in books, Atticus Finch comes to mind, and the trial work you’ve done and your compassion and empathy as I think you just articulated but so beautifully comes across as very much like a real-life Atticus Finch.  So, thank you very much for joining us on Workers Comp Matters today.

Leo Boyle: Wow!  That’s very, very high praise and undeserved.  I’m just another trial lawyer, and I’m just proud to be one of you.  So, thank you for those kind words and for having me, and my thanks to all of the wonderful lawyers in this country for what they did on 9/11, and what they do everyday for ordinary people.  So, thanks for having me.

Alan S. Pierce: And to our audience, thank you again for turning in.  We look forward to our next podcast here on Workers Comp Matters on the Legal Talk Network.  So, please, go out and make it a day that matters.  Bye-bye.

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Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by Attorney Alan S. Pierce where we try to make a difference in workers’ comp legal cases for people injured at work.  Be sure to listen to other Workers’ Comp Matter shows on the Legal Talk Network.  Your only choice for legal talk.

The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by the State Bar of Texas, Legal Talk Network or their respective officers, directors, employees, agents, representatives, shareholders or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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