Tuesday, September 11, 2001, dawned a gorgeous New England morning—sunny, warm, and dry. But shortly before 9 a.m. a nightmare began to unfold in New York City, and soon thereafter at the Pentagon and near Shanksville, Pennsylvania. Within an hour, it was clear that the United States had suffered the most massive and horrific terrorist attack in its history.
Like Americans everywhere, members of the American Association for Justice (known in 2001 as the Association of Trial Lawyers of America) were stunned, saddened, and angry—and we wanted to help. The 19-member Executive Committee, charged with addressing matters of urgent importance to the association between Board of Governors meetings, immediately began discussing an organized trial-lawyer response that would help shape how the law and the profession would aid thousands of victimized families.
Change Was Coming
Several things were immediately apparent. First, it was clear that 9/11 had altered life as we knew it. Nothing would be immune from change—including the legal system. The committee also realized that 9/11 was a mass murder, not a mass tort, which would affect how the legal system should respond.
We understood that even if airline negligence had contributed to the hijackers’ success, the civil justice system could not possibly render compensation in the traditional way: The airlines would not have enough insurance to cover even a small fraction of the potential damages. (The committee soon learned that the two planes that struck the World Trade Center had a total of $3.2 billion in insurance coverage, and in New York the property damage alone exceeded $50 billion.) Finally, committee members felt strongly that the legal profession had to respond in a coordinated, restrained, thoughtful and patriotic way. Discipline was imperative.
Helping the Victims
On the night of September 12, the committee authorized a press statement, to be issued the next morning, calling for a moratorium on the filing of civil lawsuits arising out of the attacks. The statement also signaled to Congress and the White House that AAJ was willing to consider supporting federal remedies for the victims. This was a significant departure from AAJ’s long-standing reluctance to involve the federal government in providing civil remedies for injured people. But the committee believed that an exception was appropriate under these exceptional circumstances.
Reaction to the statement was immediate and powerful. More than 700 members e-mailed their approval. Although the moratorium had no force of law, it was honored for many months after the attacks; it was finally broken not by a victim, but by an insurance company, which sued one of its insureds to disclaim coverage for the loss of the trade center buildings.
Steps in Motion
Two hours after the statement was released, AAJ learned that airline lobbyists were on Capitol Hill seeking bailout legislation that would include loan guarantees, cash and near-total tort immunities. That effort failed, thanks in part to the immediate advocacy of AAJ’s Public Affairs department, but the airlines returned to the Hill with another attempt. The same day, AAJ’s Executive Committee—believing that Congress had to address victims’ needs as well—met by conference call to continue hammering out a plan for a compensation program and pro bono representation for the victims.
Two days later, an AAJ delegation met with House Minority Leader Dick Gephardt (D-Mo.) and with Senate Majority Leader Tom Daschle’s (D-S.D.) top aides, who enthusiastically received the idea of a victim compensation fund and engaged members and leaders on both sides of the aisle. They asked the association to put the concept of such a fund in writing, and the AAJ staff went to work. Chief drafters were Bob Peck and Dan Cohen.
That afternoon, AAJ’s delegation met with counsel for American Airlines and United Airlines. The delegation learned that the insurer for one airline had terminated its war-risk and terrorism coverage. The lender for the other had threatened to withdraw its line of credit if the airline had uncapped liability exposure for 9/11. These were powerful arguments for the bailout bill, and they were persuasive to members of Congress. (The dire predictions for the airlines proved true for United, which declared bankruptcy in December 2002.) The bailout bill had gathered great momentum and presented a unique opportunity to attach a fund for the victims.
At 7 p.m. Wednesday, AAJ faxed its written concept for a fund to the Hill, and in an all-night negotiating session among House and Senate leaders of both parties, an agreement was drafted. Negotiations continued into the following day.
A Final Agreement
The final agreement, reached Thursday night, was very favorable to the victims: Eligible claimants would receive full tort-type damages, without proof of liability or causation; neither damages nor legal fees were capped; and prompt payment from the federal September 11th Victim Compensation Fund was guaranteed. Victims could choose to litigate instead of filing a claim with the fund, but the airlines’ exposure would be limited to their insurance. The only provision AAJ protested was that the amount of collateral sources of benefits, such as life insurance, would be deducted from fund awards.
The bill went to the floor of the Senate Friday morning, September 21, where it passed 96 to 1. The House voted 356 to 54 to approve the bill. It passed both chambers a mere 10 days after September 11 and only 60 hours after AAJ first proposed the fund concept to Congress.
After its passage was certain, AAJ wrote to leaders in both houses of Congress, pledging to represent every victim of 9/11 free of charge. The letters were read on the floors of the House and the Senate.
That night, AAJ issued an e-mail call for pro bono volunteers. By Monday, hundreds of members had replied, offering their services. So began the largest private, civil, pro bono program in the history of American law.
–Leo Boyle, AAJ President 2001- 2002