Judge in 9/11 Suits Feels No Regret That None Ever Went to Trial


Originally published at The New York Times by Benjamin Weiser on 9/9/2016

After the terrorist attacks of Sept. 11, 2001, scores of victims’ family members decided to pursue lawsuits in federal court, bypassing a dedicated compensation fund in order to seek not only millions of dollars in damages, but also answers and accountability.

Many had wanted to compel a public soul-searching, and to have the airlines and others reveal in court how their policies and actions might have allowed 19 armed hijackers to pass through airport security, board planes and carry out the attacks.

Photo of Judge Alvin Hellerstein
Judge Alvin K. Hellerstein, who oversaw the lawsuits filed by victims and family members of those killed in the Sept. 11 attacks. All of the 96 cases were settled under confidential terms.

The families had amassed a trove of internal documents and depositions. But none of the material was ever aired before a jury: Each of the 96 victims’ cases filed in Federal District Court in Manhattan was settled confidentially under the direction of Judge Alvin K. Hellerstein, who oversaw all the cases.

Although that meant there would be no Sept. 11 civil trial, Judge Hellerstein, in his first public interviews about the wrongful death cases and settlements, said that he had no regrets over the outcome.

Settlements had become more important for the plaintiffs than “getting information and promoting accountability of airlines,” he said.

“They decided they’d take money rather than get information,” Judge Hellerstein said. “And it’s a debatable question,” he added, “if a trial would have produced greater accountability of the airlines.”

The judge acknowledged the criticism of those who sought to place the aviation industry on trial; one family accused him of trying to squelch a trial so that the truth about the attacks would never be made public. And he also acknowledged that by not holding a trial, there was a “loss of information” to the public.

“But it pales in my mind,” he said, “with the fact that the people who were suing for money got their money.”

It is rare for a sitting judge to discuss his cases, perhaps even more so when they carry the significance and emotional import of the Sept. 11 attacks. But after the last of the 96 wrongful death and injury lawsuits was settled in 2011, Judge Hellerstein agreed to a series of interviews with The New York Times about his handling of the cases. He spoke in two interviews a few years ago and a third on Sept. 2 in his chambers.

In the interviews, he said that he had been ready to hold a trial if the plaintiffs had ultimately wanted one, but he remained skeptical they “would get their accounting in the end,” nor was he certain they would win.

“There was great risk in these cases,” he said, adding that he encouraged families to apply to the September 11th Victim Compensation Fund for a quicker recovery.

The vast majority of victims’ families did just that, receiving money through the fund that wound up paying more than $7 billion.

Other suits related to the Sept. 11 attacks were filed, including by ground zero workers citing health injuries and other plaintiffs claiming property damages. All went before Judge Hellerstein; only one, a property damage case, remains unsettled.

Sally Regenhard holds up sign with the word TRUTH
Sally Regenhard

The judge, 82, a Bronx native, was nominated to the bench in 1998 by President Bill Clinton, after a career spent mostly in private practice.

Like so many people, Judge Hellerstein was personally acquainted with victims of the attacks. As a lawyer, he had represented the Wall Street firm Cantor Fitzgerald, which lost 658 of its almost 1,000 employees in New York when the World Trade Center’s north tower was hit. He had worked closely with several Cantor executives and eaten in the company’s dining room.

Some months later, the first Sept. 11 lawsuit was filed, and was randomly assigned to Judge Hellerstein. Other related lawsuits came in, and were sent to the judge, including one from Cantor.

“I was reading the affidavits,” he recalled. “I had to stop reading because they were people I knew.” He said he alerted the lawyers; none asked for his recusal. (Cantor eventually settled for $135 million.)

Judge Hellerstein has long believed that courts were not the best venue for civil litigants to seek answers. In a 2004 hearing, for example, he said lawsuits were “not good tools for investigation.”

Kenneth R. Feinberg, the lawyer who administered the special victim fund, said that Judge Hellerstein “knew from the very beginning that the cases had to settle — and he got there.”

“The idea of a trial made very little sense,” Mr. Feinberg said, adding that he met with families who sued. “I told them, ‘If you’re going to trial to find out what happened, you are wasting your time. A courtroom is not where you will get answers.’”

Not everyone has agreed with that position.

The family of Mark Bavis, a 31-year-old hockey scout who was aboard United Airlines Flight 175 when it crashed into the World Trade Center, had long resolved to push for a trial; a settlement, Mr. Bavis’s twin brother, Michael, said in 2010, “has not been in our vocabulary.”

A year later, a trial seemed near. But in a late ruling, Judge Hellerstein shifted the focus of the case in a way that the plaintiffs believed favored the defendants, United and a security firm that ran the checkpoint at Logan International Airport in Boston, where Mr. Bavis had boarded the plane.

The plaintiffs, in a 2011 brief, argued that the airline had a history of security breakdowns and of not heeding warnings from a company executive about inadequate staffing and training; that many screeners on duty on Sept. 11 could not speak English; and that some had never heard of Al Qaeda or knew what Mace was.

United and the security firm argued that they could not be found liable for not stopping an attack that “the entire federal government was unable to predict, plan against or prevent.”

The Bavis family settled, but also issued a blistering statement, saying the judge had “essentially gutted the case so that the truth about what led to the events of Sept. 11, 2001, would never be told at trial.”

“We put ourselves through great strain to try to do what we considered the right thing,” Michael Bavis said, “and eventually threw the towel in.”

Donald A. Migliori, a lawyer whose firm, Motley Rice, of Mount Pleasant, S.C., represented the Bavises and more than 50 other wrongful death and injury plaintiffs, said the judge was “absolutely wrong” about the litigation’s value, especially because other investigations focused largely on government failures.

Image of Kenneth Feinberg
Kenneth R. Feinberg, the lawyer who administered the September 11th Victim Compensation Fund, said that Judge Hellerstein “knew from the very beginning that the cases had to settle — and he got there.”

The plaintiffs used “the legal system to gather real information about what happened at those checkpoints,” Mr. Migliori said. “We obtained it; we just couldn’t tell the public the whole story.”

The settlements were for undisclosed amounts that were coupled with broad secrecy orders that cloaked the discovery materials that the plaintiffs obtained.

Owen Fiss, a professor emeritus at Yale Law School, who has written critically about settlements, said he understood why the Sept. 11 plaintiffs might have felt they had to settle their cases.

“But let’s not celebrate it as an occasion of justice being done,” he said. “It’s not the notoriety that they were seeking. The discovery of what the airlines did and failed to do was a precondition to seeing that the airlines were being held accountable.”

Thane Rosenbaum, a legal scholar at New York University’s School of Law, said, “This was a case that was screaming for a larger sense of moral relief: How did this happen?”

Mike Low, whose daughter Sara Low, 28, was a flight attendant on American Airlines Flight 11, the first plane to strike the World Trade Center, had long been vocal about wanting to “find some answers,” as he said in 2007. The Lows settled in 2010.

“There was so little accountability or justice,” Mr. Low said. “As a father, my daughter was murdered. It still hurts me today that I couldn’t achieve that.”

At his request, the Motley law firm has donated public court documents from the case to the National September 11 Memorial Museum in Sara Low’s memory. Mr. Low said he hoped someday the museum could receive a full archive of discovery materials from the litigation.

As the litigation progressed, Judge Hellerstein said that he met with individual families, often accompanied by Sheila L. Birnbaum, a lawyer he had appointed as a mediator. They would gather in his robing room, where he listened and commiserated with the family members as they expressed their grief.

“They wanted to tell me about their case,” he said. “They asked me, ‘Judge, is it fair if I take such and such an amount?’”

Judge Hellerstein recalled that he said what he thought. “That’s typically not a judge’s role,” he noted. “But I thought it was very important that there be a sense of equity, that people be satisfied as best they could be satisfied in such tragic circumstances.”

“Do you live the case and allow it to dominate your life?” he added. “I think we all have unfortunate events in our lives and we have to learn to absorb them and go on.”

Judge Hellerstein, who has written about the experience of being Jewish and a judge, paraphrased what he called one of the most powerful statements in the Bible: “I set before you good and bad, life and death. Choose life.”

“It affected me,” Judge Hellerstein recalled. “So I say to these people, choose life.”

Doris Burke contributed research.

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