W000240
Tuesday, November 06, 2001 2:07 PM
Topic 233 - Should there be a Hearing?
Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice
Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Zwick:
Your call for comments states:
"Among other matters, the Department welcomes comment on whether
every claimant should be granted an oral hearing or whether paper
hearings may be sufficient, and comments on what types of oral hearing
may be practicable, consistent with the statutory deadlines."
I am a trial attorney, a member of the Association of Trial Lawyers, its
Aviation Section and have spoken around the country more than 20 times
on trial lawyer issues. In addition, I handle a limited number of social security
claims. I believe it is imperative that an opportunity for an oral
hearing be
allowed each claimant.
First, I believe it would violate the section 405(b)(4)(B) of the Act to
deny the
right to an oral hearing. Such subsection provides:
"(B) the right to present evidence, including the presentation of witnesses
and documents; and"
I do not see how it will be possible to present witnesses, without the
opportunity for a hearing.
Second, with the death claims, a human life has been lost, a human life
intertwined with other human lives that will be forever changed by that
death. This is not about property, or a bond, or a stock that was
destroyed or
stolen. If no hearing is allowed, or if the hearing process is
sanitized, then
compensation may be treated much like the loss of property in this tragedy.
But human life is unique, and the individual impact of this tragedy, unique.
While the Justice Department has a valid concern with respect to the time
issues involved in allowing for hearings, we believe it is a severe
violation of
the bi-partisan mandate for this Fund, to use those temporal constraints as
a basis to deny a claimant the right to be heard about the life that was
lost, or
the injuries that have disabled. If there is a real world conflict
between the
temporal constraints of the Act, and the promise to allow for the
"presentation of witnesses", I think it a far better choice to modified the
temporal issues than the evidentiary.
Perhaps the Regulations could allow for the determination to be made within
120 days of a schedule hearing, or some other benchmark, and if legislation
is involved to make such technical change, it would seem an easier process
to obtain bipartisan support for such change, than to eliminate hearings.
The Act clearly calls for evidence of the "individual circumstances". We
believe that without a hearing, that there will be no way to fully appreciate
those "individual circumstances."
We believe that a cost calculation of handling these hearings, should
not be
considered a factor by the Justice Deparment, as the Act clearly authorizes
whatever procedural funds are required to carry out the objectives of this
legislation. I will comment on the issue of hearing officers in a separate
email.
Finally, it is clear to me that compensation will be more complete if a full
evidentiary hearing - in front of an adminstrative law judge - is
allowed, than
if these claims are handled without such hearing. It may be that the Justice
Department sees this as a consideration that would militate against allowing
for hearings. However, full compensation is clearly a policy of the
Fund. This
was a bipartisan act, agreed to by Democrats, whose philosophies would
clearly be alligned with allowing for full access to justice for all
those injured
on September 11th. In agreeing to the Fund, the pro-plaintiff advocates
agreed to waive their rights to pursue potentially culpable defendants
beyond insurance limits. This was a major concesssion, and if the Fund
becomes an illusory promise of compensation, the bipartisan trust that went
into its creation, will be transformed into bitter conflict.
Our whole society has been a victim of the September 11th attacks. Our
airline industry, our stock market, our consumer confidence, potentially our
insurance industry, our faith in government, have all been injured by these
actions. Yet, the truly innocent and most important victims of this
tragedy are
the nearly 5,000 people who were killed, the thousands more who were
injured, and their families. If government bails out the airlines, bails
out the
financial markets, bails out the insurance industry, yet leaves the true
victims with only a fraction of full compensation, the word justice will
not long
be associated with the Fund.
Unlike many other members of the trial bar, I saw in the Fund a promise of
full compensation. If the fund is emasculated by eliminating hearings, or
artificially restricting economic or non-economic damages, then far more
individuals will be left with no meaningful choice but to pursue potential
wrongdoers in Court, and perhaps challenging the Constitutionality of
liability protection granted hereunder.
Ultimately, it will be those like myself, who will be the guiding voice, that
determines whether the objective of a Fund where lawsuits would be
unnecessary, is obtained. Thus, I believe it is imperative that you
listen to
the voice of those trial lawyers who make their living representing
those in
need of justice on a contingent fee basis. TLC does not speak for such trial
lawyers. ATLA sadly has stopped speaking for and listening to such trial
lawyers. The claimants will gravitate to the lawyers who stand up and are
heard on the issues that are important to them. They will gravitate to the
lawyers who are solely concerned about their rights and claims, not the PR
goals of a national association. And we believe if given the choice,
they will
pay a reasonable contingent fee so that they can individually choose who
they believe to be the best lawyer, not an anonymous lawyer, who promises
to work for free.
If you want this Fund to achieve the policy goals behind its creation, realize
that it exists to compensate human beings, for the loss of human life.
Let the
human voices be heard, let a human being decide "extent of the harm to the
claimant" and assure that any determination of "the compensation to which
the claimant is entitled" is just.
Individual Comment