dojW000481.xml

dojW000481.xml

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2001-11-14

November 14, 2001
Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice
Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Re: Response to DOJ Request to Comment
Dear Mr. Zwick:
On November 2, 2001 the Justice Department requested comment on a number of matters related to
implementing regulations for the September 11th Victim Compensation Fund of 2001. Trial Lawyers
Care, a national pro bono program for September 11th victims, previously submitted recommendations for the regulations for October 26. We now supplement our submissions by directly responding to the Notice of Inquiry.

We have also reviewed the draft regulations submitted by Senators Daschle and Leahy and
Congressmen Gephardt and Conyers on October 25. In our view, those draft regulations would
accomplish the intent and purpose of the Act and allow a speedy, fair and just process to compensation the victims. Those draft regulations contain provisions for managing claims, expediting the presentation of evidence, reaching decisions and allowing an administrative appeal process. In addition, the draft would apply a uniform set of rules to all victims, thus guaranteeing due process and equal treatment.

Some have contended that there must also be equal results. That, however, is neither required by due process nor the Act. In fact, by guaranteeing each claimant the right to present evidence and witnesses, the Act infers that the awards will not be equal. All any rule of law has ever guaranteed is that all will be judged by the same standards. Indeed, given the infinitely variable differences between individuals and families, requiring the same result (as through some system of preset values or formula) would be arbitrary and unfair.

We understand and share the Department's concerns about deciding claims within the relatively short time allowances provided in the Act. Those limitations can, however, be managed and should not be allowed to dictate arbitrary rules. Trial Lawyers Care has, for example, expressed its willingness to work with the Special Master to settle cases (thereby eliminating the need to a hearing and decision) and to develop ways to manage cases requiring a hearing so as to not overload the process. There are also other ways to manage the process that we are eager to discuss such as different tracks for simpler more expedited hearings that can be completed in not more than a single day versus hearings that might take more than a single day. In addition, claims could have a pre-filing review period which should exceed 14 days after which the claims would be deemed filed. Finally, as we have previously stated, we believe that lawyers from Trial Lawyers Care will represent most victims and we want to do our part to ensure an orderly and workable process. Please be assured that we stand ready to work with the Department and the Special Master to implement ways to achieve that goal.

With respect to the matters on which comment was requested, we submit the following.


1. The effective date of the regulations should be no later than December 21, 2001. It is
extremely difficult to advise clients without the regulations. Indeed, given that the Fund is required to accept claims beginning on December 21, 2001, it would be extremely beneficial if the regulations were issued before December 21, 2001. If regulations were delayed beyond December 21, victims would be prevented from filing claims and the beginning of the Fund would be effectively delayed which would be contrary to the Act. For those reasons, there is "good cause" under 5 USC 533(d) to waive the 30 day requirement before the regulations can go into effect. I should also note that we have a task force working on developing training materials and educational programs for the Trial Lawyers Care lawyers. We cannot complete that work until the regulations have been issued. That is an additional reason why it would be extremely beneficial if the regulations were issued before December 21.

2. The "interim final" regulations should be comprehensive and cover all matters, not just those
items identified in Section 407(l)-(4) of the Act. As the Notice of Inquiry has already noted, victims and attorneys representing those victims need comprehensive regulations to advise and make critical decisions about whether to file a claim in the Fund. Without comprehensive regulations, such as the draft regulations submitted by Senator Daschle et al, victims cannot be fully informed about their choices. Thus, it would be both appropriate and necessary that the regulations cover subjects such as the qualifications and authority of hearing officers, standards for challenging or removing hearing officers, requirements for the contents of decisions, procedures for an administrative appeal, authority to compromise and settle claims, and privacy protection provisions. Trial Lawyers Care also urges that the regulations include provisions for publication of the availability of the Fund, qualifications for attorneys
representing claimants, and provisions requiring notification of pro bono programs.

Trial Lawyers Care believes that there will not be a large number of lawsuits filed prior to
December 21. But, even if only a few lawsuits are filed, litigants have only 90 days within which to elect to file a claim in the Fund. Therefore, even as to those few cases, there is an immediate need to have knowledge about the regulations at least by December 21, 2001.

The Department also requested comment as to whether victims who withdraw from litigation
can refile a lawsuit if they later elect not to file a claim or are determined not to be eligible to file a claim.

a. Election not to file a claim. The Act only "waives" the right to file suit "upon the
submission of a claim". Thus, if a victim dismisses a lawsuit and then decides
not to file a claim, there should be no legal prohibition to refiling the lawsuit.

b. Determined not to be eligible. The Act only applies to eligible individuals.
Therefore a claim by a person who is later determined not to be eligible to file a
claim should not constitute a waiver of that person's right to file a lawsuit.

3. Topics #1 and 2: Claim Forms. Attached is a proposed claim form. In designing this form, Trial
Lawyers Care sought to have a form which provided the basic information required by the Act but which
was not so demanding or onerous as to hinder the filing of claims. We believe that these principles are
consistent with and indeed required by the Act to implement an expeditious and fair process. Thus, the
form should not require the attachment of specific documents or detailed information. While the form
should not prevent the filing of supporting information, requiring such a filing could have the effect of
preventing many victims from filing claims. Requiring the filing of all supporting documentation or
sufficient information "to reach a decision" is also contrary to the Act which guarantees each claimant a
right to a hearing at which time they can present evidence and witnesses. Furthermore, many victims
have been severely emotionally traumatized by the attacks. In many cases records were destroyed, and,
in others, survivors do not have the ability to gather detailed materials. Victims should not be excluded
from the process because of such circumstances. Rules or forms that had such effect or that were even
perceived to have such an effect would be very detrimental. To the contrary, the rules and forms should
be as simple and easy as possible.

Trial Lawyers Care has already suggested a review period following receipt of a claim before
the claim is deemed filed. We believe the 14-day period contained in the draft regulations Submitted by
Senator Daschle et al to be very appropriate. We also believe that in absence of any action during the
14-day review period, the "deemed filed" provision in the Senator Daschle et al draft is an important
claimant protection against any abuse of the right of review.

Trial Lawyers Care also supports publicizing the Fund, including direct mail and e-mall
communications to the victims and potential claimants about the Fund, as well as the use of toll free phone numbers, a web site, and distribution of materials through other victim assistance organizations and facilities. Communications should include information about the availability of pro bono programs.

4. Topic #3 Procedures. Trial Lawyers Care shares the Department's concerns about the
limited 120-day time to render decisions on claims. Because we will represent the vast majority of the
claimants, we have a direct interest in procedures that, consistent with the Act, will assist in managing
this process. We have several suggestions:

a The regulations could provide a two-track process - one for simple hearings that
can be completed in a single day and the other for more complicated hearings
that require multiple days for the hearing. On filing or later, claimants who desire
more than a single day hearing could elect track two. Such an election could be
conditioned upon the claimant agreeing to extend the 120-day period so that, as
to track two claims, decisions would not have to be rendered in that limited
period.

b. Even as to track one, claimants should have the option, at their election, to
extend the 120-day period. Any such election should be in writing and signed by
the claimant. We do note, however, that neither the Special Master nor the
hearing officers have authority under the Act to unilaterally halt or toll the 120-
day period.

c. In all cases, claimants should have the right, at their option, to waive a hearing
and submit their claims for decision on a written record.

d. In all cases, claimants should be given the opportunity to supplement any
evidence found to be insufficient, subject to the claimant agreeing to extend the
120-day period. Under the Act, claims are for damages only and therefore
should not be dismissed for lack of evidence. Claims should either be decided or
reset for hearing when the claimant elects to extend the 120-day period so as to
present supplemental evidence.

e. Although not a subject for the regulations, Trial Lawyers Care has stated its
desire and intent to negotiate settlements of a large number of claims.
As a matter of management it would be efficient for the Special Master to
designate specific personnel with settlement authority to conduct such
negotiations.

f. Under the Act, every claimant has a right to a hearing at which witnesses and
evidence can be presented. That does not mean that in practice hearings will be
required in all cases or that all hearings will necessarily have to be completed in
120 days. Trial Lawyers Care recommends that, in those cases where hearings
are necessary. they be conducted by hearing officers who should have the
authority to ask questions, request evidence and render decisions. Hearing
officers should be qualified, experienced and promote trust in the Fund. Trial
Lawyers Care recommends that the hearing officers be retired federal (and if
necessary state) judges and that, to the extent possible, they be drawn from the
relevant jurisdictions. Decentralizing the initial decision-making process is not
only consistent with the civil justice system, but would also allow for an
administrative appeal process.

g. Claimants should be afforded an appellate review process whereby the
decisions of hearing officers could be appealed for review by the Special Master
if the claimant elects to extend the 20-day period to authorize payment. By this
appeal process, claimants would have a due process right to contest improper or
abnormally low awards. In this connection, Trial Lawyers Care endorses the
process and standards for review set forth in the Senator Daschle et al draft
regulations. Trial Lawyers Care also believes that the period of time for
determination of any appeal should be limited to 60 days. That will allow
adequate time for review and will not overly delay the process.

h. To expedite proceedings, Trial Lawyers Care has previously recommended
relaxation of the rules of evidence, proof by affidavit, and rebuttable
presumptions for items of future economic damages.

i. Trial Lawyers Care has previously recommended that, to the extent possible,
hearings should be held in locations convenient to the claimants, that all
testimony be under oath and that all proceedings be recorded. The burden of
proof should be the preponderance of evidence standard.

5. Topic #4: Procedures to assist claimants. As stated above, Trial Lawyers Care Supports
publicizing the Fund, including the use of direct mail, toll-free phone numbers, a web site and e-mail
communications to disseminate information about the Fund to victims and potential claimants. We
suggest that the office of the Special Master be located in New York City, where it will be convenient
to the greatest number of victims. Satellite offices should also be located in Washington, D.C., or
adjacent to the Pentagon in Virginia and in Connecticut and New Jersey.

The Special Master should utilize all available means to reach out to the victims and Survivors.
For example, all FEMA, and other government communications relating to the events of September 11,
should include information about the Fund. There should be regular press briefings and releases. Many
state and local authorities have established victim assistance programs, and the Special Master should
also seek to use those programs for additional Outreach. Finally, charities and existing state and local
support agencies are also assisting victims. The Special Master should seek to use those agencies as
additional means of victim outreach.

We cannot stress too strongly the need for vigorous, constant and repeated outreach. Our
experience from having a toll-free number, a web site, e-mail capability and numerous outreach
endeavors, convinces us that it is going to be a long and arduous process to reach the victims. While
this reflects the depth of the emotional trauma they have suffered, it also underscores the need for such
programs. We stand ready to share our experiences and to assist in this process in any way.

Trial Lawyers Care is a pro bono program. No lawyer representing a client through Trial
Lawyers Care will receive or accept any fee, directly or indirectly, from a victim. We fully expect and
are preparing to represent the majority of the claimants in the Fund. On the other hand, we strongly
believe that nothing should be done that would in any way interfere with access to the Fund. For that
reason, there should be no restrictions on claimants representing themselves; nor should there be any
restriction on a claimant retaining an attorney or on the fee the claimant chooses to pay a non-pro bono
attorney. That should be a matter solely between the client and attorney. Indeed, we believe that there
is no legal authority in the Act or any other law that would permit the Special Master to take such
action. Furthermore, public disclosure of the availability of pro bono legal services by the Special
Master in the media and directly to the victims, together with requiring all attorneys to also expressly
advise their clients of the availability of pro bono legal services should serve as a powerful deterrent to
any private fee abuse. Finally, to the extent that there are any such fees, they should be paid by the
client and not by the Special Master.

Trial Lawyers Care also urges that all materials and communications from the Special Master
about the Fund should prominently state the availability of all pro bono services. We stand ready to
work with the Special Master in that regard.

6. Topic #5: Claimant eligibility. We believe that the Act clearly describes the three sites of the
September 11th attacks. We further believe, as we have previously stated, that the terms "present at,"
"physical harm" and "immediate aftermath" should be defined in the regulations. In that connection, we
repeat our previous suggestions:

a. "Physical harm." Physical harm should be an objectively verifiable injury
and any resulting condition, disability or loss that directly and in natural
sequence is caused by the injury.

b. "Present at." Present at should be defined as being in a location described in the
Act or in such proximity so that a physical harm was caused by the destruction
in or of such location.

c. "Immediate aftermath." Immediate aftermath should include all events
resulting from the attacks, so as to include all individuals who were injured
responding to the events and/or attempting to rescue individuals injured or
placed in physical danger as a result of the events. It should also include the
period following the attacks during which rescue efforts continued to search for
and find victims and during which injuries continued to occur.

As far as "latent" injuries are concerned, we believe that the Act expresses the intent that injuries
incurred as a result of the September 11 attacks should be compensated. If evidence exists that an
injury occurred and that there is reasonable basis to project the likelihood for future manifestations of
harm, the hearing officer should take such evidence into account in deciding damages.

We do not believe that the regulations should attempt to enumerate the type of evidence that a
claimant must present to establish a claim, the claimant's or a decedent's presence at a site, or the
identity of a decedent. Inevitably, such efforts will fall short and have the effect of penalizing some
legitimate claimants. It is sufficient that proof is required and that it be judged by a preponderance of
evidence standard. Thus, if a hearing officer determines that the proof offered is insufficient, he or she
should allow additional time (upon the claimant's extension of the time limits) to produce sufficient
evidence or, if such evidence is not forthcoming, deny the claim.

With respect to the personal representative questions raised, we believe that the expeditious and
just way to proceed is to require that all decedent claims be brought by an appropriate personal
representative. Such a person would be a person named in a will, or parent or legal guardian of a minor
or incompetent decedent, or a court appointed personal representative. Such a requirement would
eliminate many of the concerns evident in the questions posed in the Notice of Inquiry because the
personal representative would have a fiduciary duty to all beneficiaries of the decedent. Thus, the
personal representative would bring the claim on behalf of all beneficiaries and would be legally liable to
them for any omissions or dereliction of duty.

As we have previously urged, the regulations should clearly spell out who is entitled to recover so
that, from the outset, the claim can proceed with a clear understanding of who are beneficiaries, and
what are the bases of and standards for the compensation of each beneficiary. In that connection, we
have reviewed the Senator Daschle et al draft regulations and believe that they fully and fairly
accomplish that purpose. Finally, we do not believe that the Special Master needs to involve himself or
herself in any family or other "personal representative" disputes. Local laws and procedures are
sufficient to handle such matters, and, if such disputes in any way interfere with claim payments, the
Special Master can implead the parties into local Courts, pay the claim into the clerk of that court and
allow those processes to resolve the disputes.

7. Topic #6. Nature and amount of compensation. In its October 29th recommendations, Trial
Lawyers Care commented on the nature and amount of compensation. We believe that compensation
should be compassionate and generous. The Fund was implemented as essentially an alternative
remedy. Moreover, by providing speedy and generous compensation to the victims, the United States
will show the world how a great nation treats its citizens. This will provide a stark contrast to the
actions of the Taliban regime.

To accomplish that goal, we urge that there be a uniform set of rules for both economic and
non-economic damages, delineated for personal injury and death claims and as between the various
beneficiaries. Thus, for personal injury claims the regulations should set forth the standards for
economic and non-economic damages for the injured person and for the consortium damages of family
members. For death claims, the regulations should set forth the standards for damages recoverable by
the decedent's estate, as well as for the economic and non-economic damages recoverable by family
members and dependents. We have reviewed the Senator Daschle et al draft regulations and believe
that they fairly and justly accomplish those goals. By providing clear and uniform standards, the
regulations will ensure that each claimant shall receive equal treatment.

We oppose the concept of adopting schedules or hypothetical or presumptive awards in the
regulations. The Act guarantees each claimant the right to a hearing at which they can present
evidence and witnesses. Preset schedules or presumptive awards would eviscerate that right. Such
schedules would also imply an arbitrariness and unfairness that would seriously undermine public
confidence in the Fund. On the other hand, decentralization of the initial decision-making process
through the use of experienced hearing officers and an active settlement process will result in a body of
precedential decisions.

For similar reasons, Trial Lawyers Care opposes any prohibition of economic expert evidence or
the mandating of particular experts or methodologies. We believe the better course would be to
implement rebuttal presumptions such as those we have previously recommended, or those contained in
the Senator Daschle et al draft regulations. We believe most claims would be presented by utilizing
such presumptions, but those electing otherwise should not be foreclosed.

Trial Lawyers Care is concerned about the presentation and costs of expert evidence. We have
established task forces to explore ways and means of presenting both future economic and future
emotional damages. We are working with experts in the fields and professional organizations and
societies to investigate generic evidence and models, computer programs, the development of a data
base of experts who would testify on a pro bono basis, and other related matters.

A uniform set of rules for both economic and non-economic damages, applied equally to all
victims, assures due process. That does not mean, however, that all awards will be precisely the same.
Awards will vary among claimants. That is inevitable because there are all infinite number of variables
among individuals and families. Thus, while individuals may suffer similar injuries or die under similar
circumstances, the damages resulting from those injuries or deaths would not be the same. Any rule that
sought to categorize claimants in ways that would result in the same award would therefore necessarily
be unfair to some or even all of those claimants. The only fair and just way to proceed is for each
claimant to have the right afforded in the Act to all individual hearing and an individual determination,
subject to the recommendations set forth above.

As far as collateral sources are concerned, we have previously provided detailed
recommendations in our October 26 submission. We have also reviewed the definition of collateral
sources and the deduction of collateral sources sections of the Senator Daschle et al draft regulations
and believe they are consistent with the fair and just administration of this aspect of the program.

As we stated earlier, we stand ready to meet with the Special Master or the Department to
assist in any way in moving this program forward.

Comments by:
Trial Lawyers Care Inc

Attached Draft Claim Form

2001-11-14