Attorney and Brockton, Massachusetts native Ken Feinberg has one of the most unique and unenviable professions in the world, one chronicled in German filmmaker Karin Jurschick’s documentary Playing God, making its world premiere at Hot Docs in Toronto this weekend.
Since the mid-1980s, the now 71 year old Feinberg, who originally grew up wanting to be an actor, has been the face of a very specific, but also distressingly vague form of litigation. Feinberg has become the go-to lawyer for governments and corporations to bring in following large scale natural or manmade disasters. Whether it’s a mass casualty incident (9/11), or a disaster that ruins people’s livelihoods (Hurricane Katrina), or incidents where corporations are directly responsible for losses and health concerns (the BP oil spill, the use of Agent Orange during Vietnam), Feinberg has been brought in more often than not to determine adequate compensation in a bid to give victims and grieving families whose lives have been irrevocably changed forever some small piece of mind.
It’s not an easy job, and it’s one that has made Feinberg sometimes as hated by the public as he is revered within legal circles. Most of his judgments, by his own admission, are made through a rigorous amount of hypothetical analyses that try to determine what a claimant or victim of such a catastrophe would have done with the rest of their lives if they were able bodied or alive, and yet, he takes the time to personally sit down with any and all claimants willing to file after a tragedy to hear their concerns. Feinberg always stresses that the system is imperfect, his judgements are never going to be all-encompassing, and the emotional reaction one gets from trying to determine the monetary value of a life is something he’ll never get used to after thirty-five years on the job. Money can never fully compensate for a true sense of loss, and such judgments are not an indication of a victim or claimant’s self-worth.
Recently, as Playing God documents in great detail, Feinberg has been brought in to look at a more looming sort of catastrophe: corporate, multi-employer pension plans that for a variety of reasons are about to go bankrupt if retirees aren’t forced into taking massive cuts of their nest eggs. It sounds like a different sort of litigation, but as Feinberg explains, the emotions involved are quite similar to previous litigations that he’s worked on.
We caught up with Ken Feinberg last week while he was on the road in New York to talk a bit about his life, career, and the things that he’ll never quite get used to.
You’ve written a couple of books, you’re now involved with this documentary, and you work in this profession where it’s kind of hard to explain to people what it is exactly that you do. You don’t have a black and white job, and there are a lot of shades of gray to what you do, so when you get the chance to write a book or be a part of a documentary, do you feel like that gives you a better chance to explain to people what you do for a living?
Ken Feinberg: Absolutely. In fact, I find that the writing of my two books a catharsis, to tell you the truth. It’s the opportunity for me to sit down and put in words exactly what I do, why I do it, and how I do it. I find that writing two books is more worthwhile to me than it is to the reading public.
That makes sense to me, since you work in a field where it behooves you to come out and explain how some of these decisions are made, but it seems like what makes you so good at your job, and so good at writing, and how you come across in an interview setting, is that you have the skills of a great listener. How long over the course of your career have you been developing these skills? You seem really attuned to people’s need and you make time for anyone who comes up to you and asks for time. How long does it take you to get to the point where you feel comfortable conducting your business like that?
“I can’t bring back a lost loved one. I can’t restore an amputated limb. I can’t correct third degree burns. All I can do, and it isn’t very much, is I tell them I can provide for them a certain degree of financial certainty.”
Ken Feinberg: I’m not sure you EVER feel comfortable doing it. This is a listening experience for me over the past thirty-five years, since 1984 when I first came became involved with compensating victims and it was the Vietnam Veterans who were exposed to the Agent Orange herbicide while serving in Vietnam. There was a litigation there, and that was when I began the learning curve of learning how to listen, how to empathize, how to talk to innocent victims, how to explain and articulate what you can and can’t do with compensation, and I’m never sure that you ever finish learning about interacting with human beings and dealing with human nature.
Was there a point during your career – whether it was during the Agent Orange litigation or before that – when you realized that your chosen path of profession was something that people were going to take on a deeply personal level? How exactly did you deal with it when you first came to that realization?
Ken Feinberg: Well, first of all, I never as a youngster or even as an adult, professional lawyer, I never, ever thought that I would ever be doing what I’m doing in distributing money to victims of tragedy. I never thought that would ever be on my radar screen. I think that over time, I’ve learned that being a good listener and expressing empathy as a private citizen and as a human being – NOT as a lawyer – has been very beneficial and very helpful.
When you work in a profession like yours where you have to have a great deal of empathy for the person sitting across the table from you, how hard is it sometimes to explain to them that you’re an agent that’s working within a system that to some degree was broken by the time you got to it, and that you have to work within the same broken system that you wish at times you could change?
Ken Feinberg: You have to explain to people in very simple, sometimes rather stern tones that there’s only so much I can do. I can’t bring back a lost loved one. I can’t restore an amputated limb. I can’t correct third degree burns. All I can do, and it isn’t very much, is I tell them I can provide for them a certain degree of financial certainty. I can give them one less thing for them to worry about, but I can’t bring back a loved one, and money is a pretty poor substitute for loss, I must say.
That gets to the heart of something I’ve always found interesting about your job, because while life is the one thing you can’t really get back, I find that there’s a link between the monetary value of a life or a loss of livelihood following a tragedy and an overall fear of death that’s unavoidable. Have you noticed that same kind of fear that people have is linked to how the perceive your job and what you do?
Ken Feinberg: You’re absolutely right. What you find with individuals who file claims with me for compensation is a fear, an uncertainty about what the future holds. It’s a pervasive fear brought about by an absolutely unanticipated tragedy. What you can do, or what you try and do, is that you try to explain to that victim or that claimant, “Well, there isn’t much that I can do for you in the way of bringing back a loved one or healing your wounds. What I can do is alleviate whatever fear or uncertainty you have about money.” That I can do, and I find that providing people a degree of certainty about their financial future does have an ameliorative effect in easing some of that fear, but it isn’t easy.
“It’s very, very difficult to develop the right tone and the right attitude and the correct empathetic disposition to explain to people how mathematical it is, and how under the American system, how calculating it is to come up with numbers as a barometer of loss or injury.”
It’s also quite hard when you work in a field where you’re trying to assuage these fears, but much like how fears are hypothetical situations until they’re made real, you also have to deal in hypotheticals to determine where this victim or this deceased family member would have eventually gone in their lives if the tragedy never happened. That’s certainly not a perfect system, so how do you explain to someone that you also deal in hypothetical situations and that you can only do the best you can?
Ken Feinberg: You try and explain just what you said. You say, “I am making certain assumptions about the future financial success of your lost loved one. I am making certain assumptions about what you might have earned in the future before this horrible attack that severed a limb or ended up with you in a wheelchair. Those assumptions suggest other assumptions, and I might be wrong, but that’s the best I can do, and your compensation is tied to my best assumptions about your future working life or the life of the victim.”
Could you potentially articulate what it’s like to go through a process like what happened with you when you were brought in to help redesign the salaries of major financial executives during the Wall Street bailouts a few years ago? You took a lot of flak from people in the media and on the street over things that were changed after you made your decisions that you had not control over. It seems like a frustrating situation to be in.
Ken Feinberg: It’s very, very emotional. People need to understand that the hard part of what I do is not the objective calculation of compensation. I think there are thousands, maybe even millions of people who could do that. It is in bracing yourself for the emotional trauma of trying to explain to a claimant, “This is what you’ll receive, and that’s all you’ll receive.” That very often triggers an emotional diatribe against me for devaluing a life or an injury, but also a devaluing of a workplace consideration, as was the case there. It’s all about the emotion that comes with that. That’s the tough part.
But what’s the emotion like for someone like you who has become sort of the face for this specific type of litigation and compensation?
Ken Feinberg: The downside is that you will not secure a favourable response from many victims or claimants. You won’t! It might be the best possible method for calculating damage. It might be the best vehicle for helping victims understand better the vagaries and uncertainties of life. All of that might be true, but when you are dealing with very emotional people, there may be a reaction. “Mr. Feinberg, you are devaluing the memory of my wife, and you didn’t even know my wife.” That’s the debilitating part; the criticism as an emotional response tied to money as a solution for a loss. That’s always difficult.
You’ve also recently become involved with a different sort of crisis where you’ve almost been brought in pre-emptively, but there’s still not much you can do for people. You’re being brought in by corporations that have promised pensions to their workers, but those pension plans are quickly going broke to a point where there might not be anything left in the near future. Is it different to look at a situation like that as opposed to 9/11 or a BP disaster? Those are tragedies where you are brought in after something has already happened, but here all you can do is make those similar assumptions about what will happen with these plans in the future.
Ken Feinberg: Well, that’s right. In the pension situation, you basically have pension plans and private, multi-employer pension plans that are going bankrupt! They’ll be out of business in about five or ten years, and therefore the retirees with those plans – who have put their own money into those plans without fail – have to take a 30, 40, 50, 60% reduction in their retiree benefits in order to save the plan! And that is a VERY emotional and very, very provocative way to keep pension plans in place and solvent. That doesn’t sit well with retirees who blame the companies, and the government, and criminals for basically bankrupting these plans. And it’s very emotional all around.
“I do think that in America particularly, to never underestimate the charitable impulse of the American people. I’ve never seen anything quite like it, and in the years ahead after I’m long gone, the character of the American people coming to the rescue of people in need will continue.”
With a natural or manmade disaster, those things can happen without warning, but when a pension plan goes under or a bank loses everything, that’s more like a broken promise.
Ken Feinberg: You are 100% right. “Mr. Feinberg, we haven’t missed a payment in 31 years. I paid into this plan anticipating collectively bargained and negotiated benefits. Now, I’m told that because of lousy investments and economic restructuring, my plan is on the verge of bankruptcy. I was counting on that plan, Mr. Feinberg.” When people learn that they might take a 50% reduction in their benefits upon retirement, that’s LEGITIMATELY emotional. It doesn’t sit well with anyone.
Is there a difference between the kind of fear we were talking about before between someone who lost a loved one or a way of life in a sudden disaster versus someone more able bodied who can’t avoid a pension plan disaster that they can see coming? The latter definitely comes with more of a sense of the unknown.
Ken Feinberg: No. They’re both very emotional. The person who loses a limb is always uncertain about what the future holds. Where will they work? What type of work can they do? What kind of future medical condition will they be in? The person who loses a loved one wonders how they will move on without their loved one. How will their life change? What will they lose as a result of their death? And pensions are the same. If I lose 50% of my benefits, do I have to leave my apartment? What’s going to happen to me? How will I survive? I would say there are different degrees of emotion, but it’s the same problem.
You also have to remind people who file a claim with you in an empathetic way that a monetary judgement for them, no matter how great or small, is not indicative of their value as a human being. You sometimes have to work as a doctor in that respect, so how do you make that kind of “bedside manner” that you need to deliver that kind of information?
Ken Feinberg: It’s not easy. It’s very, very difficult to develop the right tone and the right attitude and the correct empathetic disposition to explain to people how mathematical it is, and how under the American system, how calculating it is to come up with numbers as a barometer of loss or injury. That is a very difficult task, which I still have not mastered over the last 35 years. You try your best. Don’t expect anybody to tell you “thank you,” or to express gratitude or appreciation. It doesn’t happen that way.
You’re getting on a bit now in age, and as much as I’m sure some people would like you to do this forever, we know that no one can do this forever. What do you think this kind of litigation is going to look like after you’re done, and what kind of impact do you hope to have had?
Ken Feinberg: Oh, I think, that my simple answer is, “Who knows?” (laughs) I’ve learned over the past thirty-five years to never try to predict anything about the future because sooner or later a life has a way of changing the best laid predictions. I do think that in America particularly, to never underestimate the charitable impulse of the American people. I’ve never seen anything quite like it, and in the years ahead after I’m long gone, the character of the American people coming to the rescue of people in need will continue. I’m not essential to that. That’s part of the American heritage and the American character. So there we are.