This is the second in our series profiling great legal minds. We spoke with Kenneth R. Feinberg by phone on February 2, 2011.
Ken Feinberg is the founding partner of Feinberg Rozen, LLP. He is well known for facilitating claims and awards from the September 11th Victim Compensation Fund. He has served as Special Master in numerous other high-stakes product liability, personal injury, and wrongful death claims. Mr. Feinberg was appointed by President Obama to administer the BP Deepwater Horizon Disaster Victim Compensation Fund. As the White House’s Special Master for Compensation—or Pay Czar—he ensured that companies receiving federal bailout money were complying with rules for executive compensation. He has taught as an Adjunct Professor of Law at Georgetown University, the University of Pennsylvania, Columbia University, New York University, and the University of Virginia.
Spindle Law: If you’re addressing a lay person, how do you describe what you do in mediating and settling claims arising from tragedies?
Ken Feinberg: What I do with these cases isn’t mediation. It’s designing and administering procedures for processing claims and determining appropriate compensation, deciding who’s eligible. It’s called systems design. Other examples [besides the current BP Deepwater Horizon Disaster Victim Compensation Fund] include the 9/11 victims’ compensation fund, the fund for victims of the shootings at Virginia Tech, the Agent Orange settlement. They’re proposing a similar program for the victims of the shootings in Tucson, Arizona. But these systems aren’t common. That is because the first issue is to decide who will fund the program. BP has put in $20 billion. The 9/11 fund was paid by taxpayers. It’s hard to know who will fund the compensation.
SL: Do you have any reaction to the recent New York Times article on the BP spill compensation fund?
KF: I think the article was fairly accurate. It did a good job describing how difficult it is to predict how the Gulf Coast will recover, how long it will take. There’s a lot of uncertainty; it’s a very very murky crystal ball.
SL: What is your proudest moment as a lawyer?
KF: I have a lot of proud moments. Working with families for the 9/11 victim’s compensation fund, for instance, and what I’m doing now. There are a series of moments that I look back on with pride.
SL: What would you be doing professionally if you weren’t a lawyer?
KF: I’ve said this publicly before: a Broadway actor. I thought about it in college. I was in a number of plays in high school, too. I asked my father about it and he said if I wanted to act I should be a lawyer and perform in the court room. Luckily, I took my father’s advice.
SL: What is the most significant change in the legal profession in your career?
KF: I think lawyers have become much more competitive and much more business oriented. You no longer see lawyers staying at the same firm for 30 or 40 years. You see them moving from firm to firm. It’s no longer a brotherhood.
SL: What are the implications of this shift for law firm’s clients?
KF: I don’t think it’s negative for clients that lawyers are more competitive now. I think our lawyers are still better and more professional than you’ll find in any other legal system. Another big change is that major clients, like big corporate clients, are becoming much more cost conscious. Law firms are responding with things like flat fees, success fees, less hourly billing arrangements, and I think that will continue to increase.
SL: How has technology influenced your practice?
KF: Technology has brought huge changes in terms of efficiency, cost savings, and speed. For instance, instead of sending 20 lawyers to a deposition, now you can watch the video online using video services like these provided by Courtroom Connect. These changes will continue as well.
SL: I’ve read that you like to teach. How do you prepare for a classroom lecture when you’re teaching?
KF: I’ve been teaching for 30 years. One thing I’ve learned is that it takes about three hours of preparation for every hour in the classroom. So, a three-hour course will take nine hours of outside preparation. The students are very sharp. I’ve learned that you must come to class well prepared.
SL: What is one thing you want to be sure your students learn, regardless of the subject of the course?
KF: The most important thing I want them to understand is that the difference between a very good lawyer and an excellent lawyer is judgment. It’s not learning the statutes or understanding the law really well, it’s judgment. And this kind of judgment can only be learned over time.
SL: Who are some of the lawyers who exhibit good judgment?
KF: Edward Bennett Williams was an excellent lawyer. Judge Jack Weinstein, senior judge in the Eastern District of New York is an exceptionally good scholar, too. David Boies is extremely good at settling cases as well as litigating.
SL: What advice do you have for young lawyers or law students who want to do what you do?
KF: I’ve learned one thing based on my experience: don’t plan too far ahead. Young law students, especially, can get hung up on planning out their careers. Three years at this firm, a few years over there. Events dictate careers. Don’t assume that you can map out the perfect plan to be a lawyer, as events are often outside of your control.