What Is Life Worth?

THERE HAD NEVER been a government program quite like the 9/11 fund—nor did the legal profession train lawyers with the combination of skills, judgment, and experiences needed to administer the fund. Being named special master of the 9/11 fund was the single most difficult challenge I had ever confronted in my thirty years as a lawyer. Although I pray that no one will ever have to play such a role again, the appointment was the natural culmination of my professional career.

In the early 1960s, I was an average student at rough-and-tumble Brockton High School in Brockton, Massachusetts, where my dad owned a tire store. Brockton is a blue-collar “shoe city” a few miles south of Boston, whose most distinguished citizens were boxing champions Rocky Marciano and “Marvelous” Marvin Hagler. I’ll always be a Brockton boy, something that’s obvious as soon as I open my mouth and speak with an unmistakable Massachusetts accent.

I joined many of my high school buddies at the University of Massachusetts, where I became fascinated by American history. Somewhat to my surprise, I turned into a first-rate student. I graduated with honors and was selected to deliver the first student commencement address at graduation. After my speech, Governor John Volpe leaned over and whispered to me, “Ken, you just said everything that I was about to say. What should I do now?” Stealing the thunder of a nationally known politician was quite a thrill for me.

I had trouble deciding on my next move. At UMass, I’d fallen in love with the stage. I played the Duke of Venice in Shakespeare’s Othello, a servant/slave in The Twin Menechmae, a comedy by Catullus, and the husband in Edward Albee’s seriocomic Zoo Story. I enjoyed the camaraderie that develops among actors during the long haul from the first reading of the script to the finished production, and I relished the laughter and applause that reward a zestful performance. So I was tempted by the idea of an acting career. But my dad stepped in with homespun—and typically wise—advice.

“Ken, most actors end up waiting tables in New York City and starving. Why not take your acting talents to law school? You can play Hamlet in front of juries.”

Smart man. I attended New York University Law School, where I found myself fascinated with the law—its analytic rigor, its vital connection to social and political issues. I became an editor of the Law Review and graduated near the top of my class. I was selected as a law clerk by the chief judge of the State of New York, Stanley H. Fuld, one of the nation’s foremost state court jurists.

I found my two years as a clerk daunting and exhilarating. Fuld’s quiet demeanor masked a rigorous intellectual honesty. As his law clerk, I would prepare draft after draft of an opinion—often a dozen or more—before he was satisfied with the legal reasoning and the use of language. Only then would the opinion be ready for public release. He taught me that there is no substitute for hard work and legal craftsmanship.

Fuld derided sloppiness and shortcuts. In a moment of anger over a bit of subpar work from me, he once declared, “Now I know why I’ve never hired an NYU law clerk before.” Coming from Judge Fuld, this was devastating, but the next day was a new day and he didn’t dwell on my shortcomings. Another time he asked me to deliver a draft opinion to the state capital at Albany. After a long bus ride, I phoned him with bad news. “I’m in Albany, and my suitcase with all my clothes has just been stolen.” Judge Fuld responded, “Never mind your clothes—what about the opinion?” Fortunately he had another copy in his office.

Judge Fuld died in 2004 at ninety-nine years of age. Many of us still miss him. My determination to validate Chief Judge Fuld’s trust in me fueled my ambition and became a motivating factor in my professional and personal life.

The law clerks who worked for Stanley Fuld over the years make up a Who’s Who of the New York bar. Perhaps the most distinguished is Jack B. Weinstein, a noted professor of evidence and civil procedure at Columbia Law School appointed to the federal bench by President Lyndon B. Johnson. A towering figure in the law, Weinstein crafted opinions that changed the legal landscape in areas as diverse as criminal law, civil procedure, race discrimination, and class actions.

Weinstein and other Fuld alumni attended annual reunions to reminisce about their days as law clerks and pay homage to their former boss. I remember my sense of awe when I began attending those gatherings. I wondered whether I, like Weinstein, would ever leave my own mark on the law or make an impact on society.

After completing a clerkship, most young lawyers would choose a position at a major law firm, perhaps on Wall Street. But I wasn’t attracted to this path. I’d heard that, in a large firm, the young lawyers toil in relative anonymity and drudgery, earning good money but enjoying little opportunity to shine in the courtroom or develop their creative talents. So I opted to remain in the public arena.

I spent the next three years as a federal prosecutor in the distinguished U.S. Attorney’s office in Manhattan. Here I put my acting talents to good use, litigating in dozens of criminal trials involving bank robbery, securities fraud, income tax evasion, and drug trafficking.

One of my first court appearances was as a junior assistant during the corruption trial of former Attorney General John Mitchell. The criminal allegations were unrelated to Watergate and Mitchell was acquitted, but the trial taught me valuable lessons. Watching from my seat at the prosecutor’s table, I thought that the defense lawyers beat us to the punch in making certain points and arguments. I realized that there is no substitute for preparation—you have to anticipate every possible scenario. I also concluded that I would have been right about the different strategies I would have followed during that trial, which suggested to me that my courtroom instincts were sound.

I applied these dual lessons to my later work, including my role with the 9/11 fund: totally prepare yourself and then, in the heat of battle, follow your instincts.

Although most federal prosecutors in Manhattan remain in the office for five years or longer, I moved on after three, when a new challenge presented itself. In 1975, Senator Edward Kennedy was seeking a new junior counsel to assist him in his work as a member of the Senate Judiciary Committee. I had always admired Senator Kennedy—I had, after all, been a teenager in Massachusetts during the halcyon days of President John F. Kennedy and Camelot. A friend of mine knew David Burke, Kennedy’s former chief of staff, who went on to become president of CBS News. Through my friend, I arranged for Burke to watch me in the courtroom. He sent word back to me that I should apply for the job.

To my delight, I was invited to Washington for an interview with Kennedy.

Wanting to be perfectly honest, I said to Senator Kennedy, “I’m a big admirer of yours, Senator. But when it comes to the criminal law, we have some differences. I’m a prosecutor, remember.”

He said, “That’s all right. I’m a former prosecutor myself. I’ll make the policy decisions. I’m looking for someone who’s smart and creative.” The senator was seeking someone who would challenge him on the issues and provide him wise counsel and independent thinking.

I was offered the job and immediately accepted—in fact, I broke the news about it to my new bride, Diane, on our honeymoon. Fortunately for me, Dede (as she’s known) is extremely flexible. She loved the Washington, D.C., area, where we have lived ever since.

My five years working with Senator Kennedy were hard and immensely rewarding. I immersed myself in scores of public policy issues and debates, from criminal law reform to immigration reform, from modifications in the law governing criminal sentencing and parole, to changes in federal bail practices and the law of evidence. I worked closely with other senators and their staffs, particularly Republican Senator Orrin Hatch of Utah, who proved a valuable ally of Senator Kennedy in promoting bipartisan legislative consensus on a number of issues.

I never thought I would have such an exciting job. I loved drafting legislation, knowing that I was having an impact on society and trying to accomplish things for the public good. I was working with Kennedy at the fulcrum of power, meeting presidents and prime ministers and kings. Even his adversaries admit that Kennedy is a fabulous person. He is without a doubt the most respected senator in the U.S. Senate because he gets the most done—a true legislator. He is a hard, indefatigable worker, and, after more than forty years in the Senate, is second to none in his mastery of the legislative process.

I also became a frequent visitor at the Justice Department during the last year of the Ford administration. Together with Attorney General Edward Levi and a young counsel named Antonin Scalia, we drafted a new law governing the collection of foreign intelligence information here in the United States. The Foreign Intelligence Surveillance Act, my first foray into the mysterious world of collecting intelligence data, became one of my proudest achievements. The new law, introduced by Senator Kennedy with the support of Senator Hatch and others in the Senate and House, created a secret federal court and judicial warrant procedure for the collection of domestic intelligence information. By delineating turf it clarified as intelligence gathering the administration became more willing to take the steps necessary to gather intelligence because it had the blessing of a court.

This law served the nation well until the 9/11 terrorist attacks demonstrated that modifications were necessary to encourage better coordination between the FBI, CIA, and National Security Agency. A law drafted with the Cold War in mind needed to be rethought in the twenty-first century to take into account the changing political climate brought about by international terrorism rather than the Soviet threat.

Under Senator Kennedy, I first served as special counsel to the Judiciary Committee then became his chief of staff. There were as many as eighty people working for Kennedy in his various offices in Washington and back in Massachusetts—a typical congressional staff. But I didn’t like being chief of staff. I found that managing and scheduling were not as much fun as doing.

Senator Kennedy’s unsuccessful 1980 presidential campaign marked a turning point for me. Mulling my future, I decided it was time for me to finally enter private practice. I had a wife and small children, and considerations of financial security had become a priority. I talked to various firms in Boston and New York before signing on with the distinguished firm of Kaye, Scholer Fierman Hays & Handler, which was searching for someone to start a Washington, D.C., office to handle lobbying, local litigation, and regulatory work with agencies such as the EPA, SEC, and others. It was a good time for me to make such a move. With President Ronald Reagan heading a Republican administration, public service would yield to private practice.

My job with Kaye Scholer meant I was in court occasionally; otherwise I was dealing with government contacts and doing other kinds of client work. Over the next twelve years I became a leading member of the firm, serving on the executive committee and the compensation committee. The office expanded during the early years of the Reagan administration and I was called on by various Fortune 500 companies to provide strategic advice and counsel. Things were going well. Excellent compensation allowed my wife and me to purchase a new family home. We took frequent family vacations. I had become a successful “Washington lawyer” and looked forward to decades of success in the private sector. Still, I felt restless.

All this changed in the mid–1980s because of Jack Weinstein, the distinguished Fuld alum. My lingering love of the stage had brought us together. I played the part of Chief Judge Fuld in a skit during a roast at the 1971 reunion of Fuld clerks, and my comic rendition of Fuld’s personal mannerisms brought down the house—and elicited tears of laughter from Weinstein. We also shared a Kennedy connection—Jack’s nomination to the bench by President Johnson had been at the instigation of Robert F. Kennedy, my old boss’s brother. The two of us became fast friends.

By 1984 Weinstein was a federal district judge in Brooklyn, New York. He was handling the Agent Orange litigation brought by thousands of Vietnam veterans claiming injuries due to exposure to the herbicide in Southeast Asia. He called on me to assist in efforts to settle the case.

Dow, Monsanto, and several other chemical companies that had been involved with manufacturing dioxin for use as a herbicide in Vietnam were the defendants. In the form of Agent Orange, dioxin had allegedly injured Vietnam vets who started suing in the 1970s. For six years, thousands of Agent Orange cases wound their way through the courts before the federal judiciary ordered all the cases sent to Weinstein for resolution—they knew he wouldn’t let them drag on indefinitely.

Weinstein got the cases in 1983 and consolidated them into one class action. This was common in consumer fraud, securities fraud, and commercial disputes, but extending it to a tort (a civil wrong) was new. It was a good thing; consolidating the cases greatly increased efficiency, so victims wouldn’t have to wait for years for a resolution.

Agent Orange initiated the modern era of mass torts and was the biggest such case up to that time. Today it pales by comparison with cases such as the Dalkon Shield ($2.5 billion in total liability), tobacco (potentially up to $250 billion), DES, heart valves, and asbestos.

In February 1984—just two months before the case was due to go to trial—Weinstein informed me that he wanted to appoint me as special master with a mandate to help the parties settle the dispute. (Special master is a judicial term from the common law. It usually refers to a judicial officer appointed to assist a court in some way.)

“Ken,” he said, “The trial will be very problematic and time consuming. It would be a good thing to settle this case. Do your best.” I promised to try.

And thus I began my new career as a mediator. My formal qualifications were nonexistent; I had no prior experience as a mediator and had not even taken a mediation course during law school. But Weinstein concluded that I was the right man for the job. He trusted my judgment as a fellow Fuld clerk in good standing. In addition, my years with Senator Kennedy convinced Weinstein that I had the political skills to help the parties reach a settlement. I also possessed the determination, flexibility, and creativity to solve the legal problems dividing the litigants. These qualities would compensate for whatever formal mediation training I lacked.

I would have to learn by doing. I began meeting with lawyers, Vietnam veterans, and representatives of the defendant chemical companies. I started by asking the chemical companies, “How much are you willing to pay to get rid of this entire class action?” They answered, A total of $25,000. Then I asked the plaintiffs, “How much are you willing to take to settle?” Their answer: $1.25 billion. “Okay, we’re making progress,” I said. “Now let’s see if we can narrow that gap.”

I spent the next six weeks working with the two sides seven days a week, threatening, cajoling, explaining, enticing, promising. The trial was coming up and both sides were uncertain about their prospects—that was key. You have to take advantage of uncertainty in the law. I talked with Judge Weinstein once or twice a day. I read all the briefs and read about the science. I told the plaintiffs they’d be unlikely to be able to show causation; I warned the defendants about the dangers of Brooklyn juries, which were notoriously generous to plaintiffs, and I reminded them about what would happen to their companies’ stock prices as a trial dragged on. And I emphasized the fact that they had insurance that would pay the settlement. (Some litigation was needed to make the insurance companies pay.)

The keys to forging a settlement were empathy (let them vent), doggedness, preparation, creativity, and flexibility. For example, after we agreed on an overall settlement amount—$180 million—we had to come up with a formula to allocate the cost among the various chemical companies. Should we use the relative market shares of the different companies as the criterion? But one company could claim that its product contained less dioxin, which meant less disease-producing potential. What about the length of time each company had produced the chemical? But that might not correlate with actual usage of the product. In the end, a combination of three factors was devised—volume, qualitative ingredients, and time—which seemed the fairest way to allocate responsibility.

Then there was the issue of who gets the money. The plaintiffs couldn’t prove that any individual Vietnam veteran’s disease was caused by Agent Orange, so we agreed to compensate whoever was most seriously injured regardless of a causal connection to dioxin.

On one of the last days before trial, Judge Weinstein brought in both sides after I’d reported optimistically to him. He offered them a tray of prune Danish—“to get them moving,” as he wryly noted. After six weeks of mediation we were able to announce a settlement—one day before the jury was scheduled to be impaneled. Neither side was completely happy, which of course means it was a good settlement. Unfortunately 80 percent of the litigants got nothing, since there was not enough money. A totally disabled vet received around $20,000. The court ordered the money put into the bank and paid out over ten years. Thanks to the interest accrued, the initial settlement sum of $180 million turned into a payout of approximately $300 million.

By today’s standards, of course, the settlement was modest. And the amounts received by the injured vets fell far short of what it would have taken to fully compensate them for their losses. Still, it was a better deal than they would have likely received from the courts, and on that basis I consider it a good piece of mediation work.

The settlement was front-page news in every major newspaper. It brought an end to a thorny, emotional litigation that had dragged on in the courts for over six years.

It also brought an end to my professional career as a litigator. The settlement was viewed favorably by business—the idea that mediation could short-circuit problems morphed into the idea that a third-party magician can help us bridge our differences. Fortune 500 companies suddenly wanted me to settle everything.