Ken Feinberg: How The Hell Does He Do It?

Update: “Worth” on Netflix is a successful portrait of a unique process and the people who inhabited it. Major reviewers agree. Movies are movies. The real story is better.

Kenneth Feinberg, attorney at law is about to become famous, maybe even very famous. In a new film called “Worth” Feinberg, who led the fund after 9/11 that gave the families of the dead and injured about $7 billion in public money, is played by the great actor Michael Keaton.

The film lands on Netflix September 3, after a brief theatrical run in New York. No gala premiere for so solemn a story. The film has been endorsed by the Obamas’ Higher Ground production company. It was shown at Sundance in 2020 and distribution was timed to coincide with the 20th anniversary of September 11, 2001.

The movie is based on Feinberg’s book What is Life Worth?: The unprecedented effort to compensate the victims of 9/11 an account of his experiences with the fund. He received an essentially blank check from Congress to reach financial settlements with the families and avoid the decades of litigation that would, among other things, bankrupt American airlines. PublicAffairs was the publisher of that book and Feinberg’s follow-up Who Gets What: Fair Compensation after Tragedy and Financial Upheaval. The memoir is being reissued in paperback with an update from Feinberg on the aftermath of the fund.

In the past 20 years Feinberg has played a comparable role in settlements after mass shootings at places like the Pulse nightclub in Florida, the great BP oil spill, and the Catholic Church sex abuse scandals. The 9/11 fund, which Feinberg handled pro bono, was the only one in which government money was the source of the payouts. An astonishing 97 percent of the effected families accepted the settlement which went to 5,562 people.

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In 2004, I was introduced to Feinberg by a mutual friend, Ben Heineman. We had breakfast at the Carlyle Hotel in New York. There was no agent involved. We offered to find a co-writer, but Feinberg wanted to do it himself. He needed editorial assistance. Three PublicAffairs editors worked with Ken on the book and the process led smoothly to publication in 2005.

In 2006, a young screenwriter named Max Borenstein optioned the book and now, fifteen years later, the film — with very good advance reviews — is done.

Because Feinberg’s very small team, with his long-time colleague Camille Biros at his side, worked so efficiently, there was a surprisingly low level of controversy and therefore visibility for their effort and the remarkable story in the book.

Over the years, it has become recognized in legal, political and business circles that Feinberg is a master of mediation at the highest possible level and without demanding the spotlight for himself. His first major experience was settling the dispute over the use of Agent Orange in the Vietnam War which caused mortal illnesses among the GIs who breathed it in. After a five-year deadlock, Feinberg resolved the cases in six weeks, which is how he came to the attention of the Justice Department who appointed him following 9/11 and Congress who funded him.

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So, there is absolutely no question that Ken has a genius for this kind of work. The essential question was posed by Michael Lewis’s in an interview on his “Against the Rules” podcast in 2019: How the hell does he do it?

With the movie coming out, I, as Feinberg’s publisher, have been pondering that question. I have known him for more than 15 years and had never before really asked myself that question.

And that is part of the answer. Feinberg is friendly, but that is different than being a friend. He is appreciative of help and advice but maintains a distance that keeps the process from becoming too personal. Ken is from Brockton, Massachusetts and graduated from UMass and NYU law school. His Boston accent is impressive — “paack” as opposed to park — in the way that Anthony Fauci’s Brooklyn twang is instantly recognizable.

Before going into private practice, he became chief of staff for a number of years to Sen. Edward Kennedy which would indicate his ability to ascend in the political arena and navigate at a very high level was considerable.

The Michael Lewis interview, which I listened to again the other day is as close as we are likely to get into how Feinberg operates. He carefully extracts the principles that guide Ken’s approach: a combination of ego, empathy, savvy, immersion, and intimidation in a way that is not bullying. For all the emotion that is inevitable in tragic situations, Feinberg consciously never gets too close to anyone he is dealing with.

Of all the families he helped after 9/11, he said, only one sent him flowers.

Feinberg has a stentorian voice and when he describes a comment made by a family member, it invariably starts with “Mr. Feinberg…” I remember an early encounter with a group of people in Staten Island that I saw on 60 Minutes. After Ken said he was “the only game in town” which is why people should work with him someone in back shouted: “Mr. Feinberg, this is not a game.” And Feinberg listened, another asset in his character. Over time, he says, he was immensely moved by what he was hearing, although the families may not have realized that was the case.

In the epilogue to the new edition of his book, Ken concludes that the 9/11 fund was probably unique in the way it was funded by Congress. The scale of the disaster was so vast that partisan battles over money were — probably for the only time — overwhelmed by the need for action. Mediation is an art. Where the money comes from and how to divide it up is always going to be complicated. And, again, it takes a particular brand of brilliance to reach acceptable outcomes to all concerned.

In the Lewis interview, he makes the point that Feinberg is a “magician” and that trying to figure out how magicians do their tricks runs the risk of undermining their magic. So, ultimately, we don’t really know how Kenneth Feinberg became the master of mediation. There will be others in that field, but he is likely to be, as the saying goes, “one of a kind.”