Out of the Ashes

Documentary on 9/11 fund stirs emotions, asks hard questions

When Professor Marilyn Berger heard Kenneth Feinberg speak about the grueling and emotional process of administering the $7 billion 9/11 Victim Compensation Fund, she knew he should document the story.

Convincing him of that was another story.

ashesBerger waited to talk to Feinberg, the special master of the Victim Compensation Fund, after his moving keynote speech at a conference in New York.

"He told haunting stories about 9/11 families, the impact of the Fund on their lives, and the uniqueness of the Fund in 9/11 history," Berger said. 

Feinberg dismissed her, saying he didn't know her or the law school and didn't understand the need to talk about it. But she wasn't easily deterred.

"It took me years to win him over," said Berger, who seven years later has released, "Out of the Ashes," a compelling documentary in which Feinberg is a major presence.

The film, which was produced by Berger through her Films for Justice Program at the law school, is a powerful story about the controversial September 11 Victim Compensation Fund and whether it offered justice to survivors and their families. It examines the legal, moral and ethical ramifications of the Fund and its impact on the civil justice system.

The federal government created the Victim Compensation Fund - the largest public entitlement program in history - just 11 days after the attacks. It eventually distributed more than $7 billion to more than 5,500 families.  "Out of the Ashes" tells the stories of seven 9/11 families and how they struggled to make sense of the tragedy - and how they chose to deal with the Fund that was designed to help them put their lives back together.

The film portrays both the strengths and its weaknesses of the Fund. Featured interviews include Feinberg, who is now overseeing the $20 billion fund to pay claims related to the BP Gulf oil spill. He speaks candidly about the difficulty in persuading victims to give up their right to sue, the problems created by ambiguity in the law that established the Fund, and how the heart wrenching stories affected him as he struggled to essentially put a price tag on a life, over and over again. 

Deputy Master Deborah Greenspan and many of the attorneys who represented victims' families in different capacities also appear in the film. But the poignant, painful and candid interviews with the families are the heart of the film. Families of several victims talk not only about their loved ones and their tragic loss, but also how working with the fund helped and hampered their personal recoveries. 

They include a retired firefighter whose son was one of 343 firefighters killed; the widow of the co-pilot of Flight 93; a woman whose husband was killed, and whose journey was further complicated because her husband was an undocumented worker; a widow of an insurance agent who rejected the Fund and felt compelled to file a lawsuit in order to demand answers and accountability; a same-sex partner of a woman who died in the Twin Towers who battled for recognition as a same-sex partner survivor; and the family of a woman who died from respiratory disease caused by the toxic dust created by the collapse of the towers.

The film debuted to a packed house at the law school in October. Berger plans screenings for New York, Washington, D.C., and other areas as well. Many of the victims' families and attorneys will see the film for the first time at a screening by the New York New York County Lawyers' Association Jan. 12.

See the film: Alumni and other community members are invited to a public screening and discussion of “Out of the Ashes” from 4:30-7 p.m. Monday, Jan., 24. 2011, at the law school. To watch a trailer, visit www.outoftheashes911.com.

"Out of the Ashes" raises important questions: Did the Fund undermine the legal system, as its critics claim? Or did it offer victims a way to avoid the extraordinary cost, complexity and excruciatingly slow pace of a lawsuit? And if the Victim Compensation Fund was the right thing to do, do those affected by other tragedies like Hurricane Katrina, the Oklahoma City bombing, and other disasters also deserve compensation? If so, is this Fund, with its methods for calculating the value of a human life, an appropriate model? 

The film attempts to answer such questions, but does not present one point of view.

"It's up to the viewer to decide," Berger said. 

Professor BergerBerger, who will be making an expanded version of the film available to law schools to purchase for curricular use, expects it to be eye-opening to students. Along with debating the fund in a legal sense, younger students may gain a greater understanding of the devastating attacks.

Although most people recall in detail where they were the moment the towers were struck and the resulting fear and anguish, Berger said that as time moves on, law students aren't as personally connected to the worst terrorist attack in U.S. history. She noted that some students who will study the film next year were only 11 or 12 when the attacks occurred.

Other key participants in the film include co-director Sarah Holt, an Emmy-winning documentary producer, director, editor and writer and narrator Charles Ogletree, the Jesse Climenko Professor of Law at Harvard Law and director of the Charles Hamilton Houston Institute for Race and Justice. A number of student research assistants worked with Berger throughout the years. 

Berger, an authority on pretrial advocacy, established the Films For Justice Institute in 1996 and produced three educational documentary films in the series "Lessons from Woburn" about a lawsuit brought by families in Woburn, Mass, alleging contamination of their drinking water. The original participants appear in the documentary, based on the lawsuit, Anderson v. W.R. Grace, the book by Jonathan Harr, "A Civil Action," and the Hollywood movie by the same name. The films are used in more than 100 law schools.

Producing the moving was more work than Berger ever expected when she spontaneously suggested the idea to Feinberg - but also more worthwhile.

"This is the culmination of a momentous seven years," Berger said.

Purchase the film.

Winter 2010-11