Judge, Jury, Exchequer

After two years of memorial services and media interviews, surgeries and therapy sessions, this is where the road ends: He sits in a drab room with cream-colored walls on the 31st floor of a midtown Manhattan office building, waiting for one man to show up and single-handedly decide what his troubles are worth. But on this morning that one man is late. So the firefighter's lawyer, a round, voluble, perspiring man with a buzz cut and a Long Island accent, rehearses his presentation: How the firefighter was thrown 20 feet and buried in debris after Tower One collapsed. How even Sharon Stone came to see him during his recuperation.

The firefighter keeps his head down the whole time.

But then the door swings open, and Kenneth R. Feinberg, the man they have been waiting for, charges in. He is wearing an elegant Brioni suit over his slim 6-foot frame. He is chomping on a wad of Mary Jane peanut butter candy that is big enough to push his left cheek out a good 2 inches.

"Sorry I'm late. I'm getting pulled in a hundred different directions," says Feinberg, revealing a Brockton accent every bit as pronounced as the Long Island lawyer's.

"No problem at all, Judge Feinberg," says the lawyer.

"Judge? My ass," says Feinberg, as he motors through the waiting area and into the hearing room.

It's true that Feinberg has never been appointed to any bench. But it's an easy mistake to make, given the unprecedented powers he's been given. As special master of the September 11th Victim Compensation Fund, Feinberg is judge, jury, and exchequer. He alone puts a price tag on the nearly 3,000 lives lost in the September 11, 2001, terrorist attacks and on the physical injuries claimed by more than 4,000 people. Families get their checks from Feinberg in exchange for agreeing not to sue the airlines or the government. The average award so far is $1.8 million, and, as Feinberg frequently stresses, it's tax-free. There is no appropriation for the fund he administers; instead, Congress essentially gave him a US Treasury checkbook and told him to fill in the amounts as he sees fit. There is no appealing his decisions except to him.

In assigning different values to different human lives, he has been asked to play God, or at the very least, Solomon, the Old Testament king famous for the wisdom he exercised in arbitrating the knottiest of life's questions. The task has been intense; Feinberg often presides over eight hearings in a single day. It is intense, but in a different way, for 9/11 families, for whom the hearing before Feinberg is a cathartic marker on their journey of grief.

Feinberg largely leaves it up to the families and their lawyers to decide what they want to talk about. "Don't feel you need to discuss what happened on 9/11," he often tells them. They usually do anyway. On one of the days I sat in on hearings with Feinberg, the stenographer broke down in tears as she tapped the family's grueling story into the court record.

If his job is like being at ground zero every day, Feinberg seldom shows signs of strain. During the hearing with the injured firefighter, Feinberg spends much of the time looking down at the printed summary of the case in front of him, jotting down notes in the margin, and tapping his left leg nonstop. He aggressively rubs his bald head as he listens to the Long Island lawyer nervously deliver the presentation he had rehearsed in the waiting room.

When it's his turn to talk, the firefighter begins by correcting an error in his lawyer's overview. "It wasn't Sharon Stone," he says, smiling. "It was Kathleen Turner."

The mood changes when he begins to discuss what happened to his co-workers. One firefighter, he says, was crushed to death by a body falling from the sky.

"A fireman was killed by a flying body?" Feinberg interjects, his eyes widening larger than his small rectangular glasses.

The firefighter nods. "By a flying body," he repeats softly.

The firefighter recalls that as he ran toward the parking garage around the corner from the World Trade Center, "I could hear the building coming down, floor by floor."

"Why were you under a lucky star on 9/11?" Feinberg asks.

"Angels," says the firefighter's wife, speaking for the first time during the hearing but keeping her eyes closed.

The firefighter is here to appeal the size of his initial award, which was below the fund average and had been determined prior to any face-to-face with Feinberg. His justification is the additional surgery he had to have and a new medical report declaring him permanently disabled. "I am on eight medications. I wake up, and it takes me two hours to get up," he tells Feinberg. He has no interest in drawn-out litigation. "The reason I went to the compensation fund is that I want to get on with my life, emotionally, physically."

Feinberg looks across the narrow table and tells the firefighter: "I will increase this award. I can't tell you right now how much, but it should be a substantial increase." Feinberg then stands up, walks toward the firefighter, and extends his right hand. The firefighter, his eyes red and moist, pulls Feinberg toward him, wraps his long arms around him, and doesn't let go for more than a minute.

IT'S HARD TO THINK OF A SINGLE program in the history of the US government that has been so identified with one man. True, the 58-year-old Feinberg, who serves without a salary, relies on nearly 200 lawyers and support people to help him administer the Victim Compensation Fund. But for most 9/11 families, the fund is Feinberg and Feinberg is the fund.

Until very recently, that was hardly an asset for the fund.

The fact that most hearings with Feinberg these days end with tears and warm embraces is a remarkable change from only a year ago, when the tears were accompanied by angry, pointing fingers. At Feinberg's series of packed "town meetings" with families in New York, Boston, and Washington, people stood up to accuse him of being cold, controlling, and clueless to their suffering. One irate widower set up a website called fixthefund.org.

Nowadays, so strong is that sense of trust with Feinberg that many family members opt to wait several months to have their hearing with him rather than a speedier sit-down with one of his designated deputies. The irate widower changed the headline on his website to "The Fund Is Fixed" and has said it is almost as if God had spoken to Feinberg.

There can be no denying that the dynamic between Feinberg and the families is profoundly different now. But has he changed?

His life story would suggest that's possible. In many ways, it's just a series of improbable transformations -- from lousy student to star of his class, from the young lawyer who loved the courtroom to the powerful mediator determined to spare people from it, from liberal Ted Kennedy's chief of staff to conservative John Ashcroft's aide-de-camp.

Feinberg grew up in a boxy Colonial in a middle-class neighborhood on Brockton's west side. His father ran a small used-tire business. His mother worked part time as a bookkeeper. He had an older sister and a younger brother, but within his circle of friends, he was in charge. "Kenny was a good leader," says his lifelong friend Barry Koretz, who is now an architect in Brockton. "He would say, 'This is what we're going to play, and when we're going to do it,' and we'd all go along."

Yet school was a different story. Feinberg spent most of his time shooting baskets at the Jewish community center and graduated in the bottom half of his class at Brockton High School. But when he arrived at the University of Massachusetts at Amherst, he came alive -- in his classes as a history major and on the stage in student theater. His love of opera and classical music, which had been sparked at age 9 when he saw the Marx Brothers' A Night at the Opera on television and then cultivated by his synagogue's cantor, continued todeepen. In 1967, he was tapped to deliver UMass's student commencement address. He went on to earn his law degree from New York University.

As a young prosecutor working for the US attorney's office in Manhattan, he immediately fell in love with the combat of the courtroom. He fell just as hard for a young stock trader named Diane "Dede" Shaff. It wasn't mutual. "He was a little, you know, serious," she recalls. "You're 25, living in New York, going to parties, and here's this guy who does operas and lectures." Eventually, she came around. "He was so passionate about life, so well informed. He opened up a whole other world to me. And I rounded out his rough edges."

In 1975 they married and moved to Washington, D.C., so he could join US Senator Edward M. Kennedy's staff. The Democratic icon says that what impresses him most about Feinberg, whom he eventually made his chief of staff, is how he stays rooted: "There are some people who come from other stations in life, and you can never tell it, not in the way they speak, not in what they talk about it. Ken keeps it."

But the real jolt to Feinberg's career came in 1983, when he got a call from Jack B. Weinstein, an acquaintance who sat on the federal bench in New York. Weinstein had been handed the contentious Agent Orange standoff between Vietnam veterans claiming injury from the infamous defoliant and the chemical industry that made it. He asked Feinberg to mediate the case, telling him his connections to Kennedy and other senators might be useful.

At his first mediation session, Feinberg asked each side what dollar figure they had in mind. The chemical industry said it was prepared to pay $20,000 in total. The veterans said they wanted $1.2 billion. Feinberg told them, "OK, we're making progress."

Six weeks later, both sides settled for $180 million.

The settlement was not without controversy. Feinberg still keeps framed on his office wall a 1986 article from Business Week decrying how, more than two years after the big announcement, no veteran had yet received a cent, while Feinberg had seen an $800,000 payday. But the vets eventually got paid (although only between $3,500 and $18,000 each), and the Agent Orange case made Feinberg a hot commodity as a mediator. (He would eventually open his own practice, The Feinberg Group, and handle high-profile -- and highly lucrative -- cases involving the Dalkon Shield birth control device, silicone breast implants, and asbestos exposure.) The Agent Orange case also introduced him to a Vietnam vet named Chuck Hagel.

Hagel, who went on to become a powerful Republican senator from Nebraska, was the first guy Feinberg called two weeks after the September 11 attacks, when Congress created the Victim Compensation Fund as part of its $15 billion bailout of the airline industry.

"He said he had an interest in doing it," Hagel recalls. One obvious holdup: The special master of this new fund would report to the attorney general. There was a reason why John Ashcroft didn't have any staffers who were former top aides to Senator Kennedy.

Ashcroft "recoiled initially," Hagel says. But Hagel told him, "I don't know an individual who can do it better."

Yet, in many ways, it's the transformation of Feinberg's relationship with the 9/11 families that is most remarkable. It began only after the interactions between him and the families moved from large auditoriums to small groups and one-on-ones. Feinberg understands retail politics. In encounters with him these days, many family members find themselves scratching their heads, wondering if they're dealing with the same guy.

Sometimes the transformations take place on the same night.

It's early December. A dozen or so 9/11 family members from Massachusetts have filed into the Tage Inn in Somerville's Assembly Square to hear Feinberg talk about December 22. That's the deadline for them to decide whether to enroll in the fund and thereby close off the litigation route.

In the last half of 2003, Feinberg made it his mission to get at least 90 percent of the eligible families to enroll. But the goal was a daunting one, considering that the participation rate had just barely broken the 70 percent barrier with less than two weeks to go.

As Feinberg lends a hand to one widow as she takes off her coat, another named Anne McNeil, wearing a tan sweater with gold snowflakes on it, settles into her seat in the fifth row. The Cambridge resident turns to the woman sitting next to her and says, "I want to hear him give me one good reason why I should do this, rather than sue."

Like many 9/11 families, McNeil is upset about the way in which Feinberg, before cutting the award check, first deducts the total amount of life insurance payouts that the victim's family received. To them, that smacks of being penalized for the precautions their loved ones took. The rule was mandated by Congress, not Feinberg, but he came to be blamed for it, especially after brushing aside early complaints with a "those are the breaks" wave of his hand.

Feinberg makes his pitch sitting down, using easy-to-understand language. He is by turns firm ("The deadline will not be extended"), humble ("People tell me, 'You must know what these people have been through.' I haven't the foggiest"), and flexible ("Just get me the first two pages of the application form. You can sign it -- or don't sign it. I don't care!").

Throughout, he speaks in his fully accented and oddly cadenced style, making him sound like a Brockton version of Jerry Stiller, the father from Seinfeld and King of Queens.

McNeil stands up and tells Feinberg that her big concern is the life insurance penalty. But she says she has heard from other families that he is becoming more "liberal" in crunching the numbers in a way that lessens the sting of the deduction. Can she take that to the bank?

As he has before, he offers to give her a "free preview" of what her award would be, with the option of dropping out of the fund within a month if she doesn't like what she hears. And then he adds this: "By the way, this allegation that I'm more liberal -- I don't think that's right. I think I've been pretty consistent."

In the end, the families give him a round of applause, and he leaves with a roomful of converts, including Anne McNeil. "I had thought he was a lot more black-and-white than he came through tonight," she says. "I saw a real sense of caring in him."

Still, swaying a dozen families won't move the meter to anywhere near 90 percent. And some families appear to be fully out of his reach.

More than 70 have filed lawsuits, saying that's the only way they can pry answers from the government and the airlines about what really happened. They are undeterred by Feinberg's warning that litigation will drag on for years -- lawsuits from the 1993 World Trade Center bombing have yet to go to trial -- and that there is no guarantee they will extract either money or answers. They accuse Feinberg of trying to buy the families' silence on behalf of the Bush administration.

Ellen Mariani is a 65-year-old southern New Hampshire woman who lost her husband on United Flight 175. She has filed suit against United Airlines, the Bush administration, and Feinberg himself. "Right now I am on Social Security. Two times, I had to go to a food pantry," she says. "But I will eat dirt before I take that money from Mister Kenneth Feinberg! I don't understand how other people could do this."

he 6 a.m. shuttle from Logan lands at LaGuardia a little after 7. Feinberg's longtime New York driver, a stocky, good-natured, pinky-ring-wearing guy named Johnny Cusimano, is waiting in the town car. As soon as he closes his door, Feinberg turns up the volume of the classical music playing on the radio.

"OK, Johnny, what's this?" Feinberg says. "I've taught you a lot. You should know this."

Cusimano cranes his ear but can't place it, so I ask Feinberg for the identification.

"I know exactly who wrote it. Dvorak," he says, shaking his head. "Now what's the piece? I'm almost sure it's Slavonic Dance No. 1. He wrote 28 of them."

"We heard another one of them yesterday," Cusimano says.

I ask Cusimano if he had listened to classical music before Feinberg came into his life.

"Nah," he says. "Now I do every day. Very peaceful."

"Very peaceful," says Feinberg.

Lately, it's the only peace Feinberg finds in his day. At his home in Bethesda, Maryland, he has an elaborate listening room where he keeps his 6,000 CDs. He's already made arrangements for the Brockton Public Library to get his collection after the fat lady sings his final aria.

Some minutes later, the bass-voiced radio announcer pipes in, "That was Slavonic Dance No. 1 of Dvorak."

Even with Cusimano's sly shortcuts, it's just after 7:30 by the time we get to the midtown office building where Feinberg has kept his New York office for a decade. (His main office is in Washington.) The first hearing was scheduled to start at 7:30. We race into the elevator.

During my weeks of travel with Feinberg, I sat in on 10 hearings that he presided over, in both New York and Boston. They ran the gamut, from parents of young victims seeking modest awards to widows seeking tens of millions. In order to observe them -- Feinberg says no other media outlet has been granted this access to hearings -- I agreed not to reveal any names or numbers specific to any one case.

Each case was fascinating, and draining, in its own way. But this single day of hearings in New York provides a good window into what life for these families is like these days, and what it will continue to be like for Feinberg until June, when the last claim must be processed.

At 7:40 a.m., we step into the conference room to find a table crowded with faces. For this hearing, the earnest lawyer has brought all kinds of reinforcements -- fellow lawyers, an economist, a neighbor, a professor, and others. Feinberg, as usual, is there by himself.

The widower making the claim is a sad-faced immigrant who speaks halting English. His wife had a well-paying senior job in the World Trade Center. A month before she was killed, they learned that their young children would develop a debilitating disease. Of all the agonizing hearings I observe, this contains the single most wrenching story. Still, its raw power is dulled by the lawyers' tendency to overdo it with too many witnesses and too much lawyerly questioning of them.

That provides the backdrop for a singularly odd experience: During the hearing, Feinberg -- a man famous for needing no more than four hours of sleep a night, a man who has not so much as yawned in my presence -- wages a battle to keep his eyelids from closing on him. The battle starts so slowly that it's not clear at first whether Feinberg is sleepy or just incredibly moved by what he's hearing. But his slow head-lowering movements followed by sudden jerks upward soon give him away. Yet he stays engaged. As one of the lawyers leads a witness in reciting her resume in excruciating detail, Feinberg jerks his head up, open his eyes, and barks, "We'll take judicial note that this is a very, very educated witness."

The hearing exceeds by good measure the normal hourlong duration. Despite the lawyers' ability to make the heart-tugging somehow seem tedious, Feinberg has gotten the message.

Feinberg has considerable discretion -- and no cap -- in determining the size of awards. But because of the fund's statutory requirements, its operating regulations (which include everyone getting the same amount for "pain and suffering"), and his own sense of fair play, he must look for empirical justifications to raise awards. Some of the more common are the victim's earning potential, the cost of "replacing" services that the victim provided to the family, and medical and child-care expenses, especially for children with special needs.

"If there was ever a case that this fund was designed to help, it is your situation," he tells the widower. "I will exercise as much discretion as I can. I wish I could do more."

After the phalanx files out of the conference room, Feinberg turns to me and says, "Those are the ones that you just want to say, 'How much do you want? You write out the check, and I'll sign it.' "

The next hearing does not promise to be any easier. A distinguished woman wearing black slacks and a pink sweater enters. Her eyes are red and puffy. Her lawyer reaches for the box of tissues on the table and moves it closer to her.

The reason for this appeal is to request a more optimistic projection of the victim's earning potential. That is quickly dealt with. But then it becomes clear that the devoted mother simply wants to talk about her only son. Several times, she mentions that her son graduated from Boston College. Feinberg files that away. Later, when she begins to break down, he asks the woman if she has any grandchildren.

She holds up one finger and, wiping her eyes with a tissue, whispers, "A grandson."

"I'm sure you already have him applied to BC, right?"

The woman laughs and, with that, regains her composure. She walks out smiling.

The next several hearings all concern the loss of big earners. You'd think Feinberg, with his Brioni suits and Bethesda address, would find an easy equation with this crowd, but he often seems more at ease chatting with the families of firefighters and cops. Clearly, though, what has made him unpopular with the well-heeled crowd is his refusal so far to grant awards exceeding $8 million, even when income projections would seem to justify much bigger awards. The fund, he says, was designed primarily to make sure no 9/11 family (or airline) is left destitute. He doesn't want "85 percent of the money going to 15 percent of the people."

That doesn't stop some lawyers from trying. During one hearing with an injured financial executive, the lawyers show gruesome photos of the executive's injuries and trot out a psychiatrist to talk about reignited childhood trauma. There is something unseemly about watching a victim who has been through so much pain have to sit and listen as others talk about how much anguish is still ahead. As far as Feinberg is concerned, it's also unnecessary. Despite all the early criticism about his coldness, behind the scenes, Feinberg shows a real interest in the treatment of victims and families.

After the client leaves the room, Feinberg closes the door, turns to the lawyers, and throws up his arms. "Why do you guys insist on bringing in these people? A shrink talking about childhood trauma? You guys think this is a trial."

If the immediate aftermath of September 11 exposed the best of American society, the longer-term fallout occasionally exposes the worst. The last hearing of the day showcases a strain of conflict that Feinberg sees with depressing frequency: the internal family dispute.

An elegant widow who keeps her eyeglasses in her hair sits down at the conference table. Her husband had taken out several insurance policies before his death. But her lawyers have a word of caution for Feinberg before he reflexively deducts those payouts from her fund award: She has barely seen a dime.

The lawyers and the widow then detail an almost unfathomable state of affairs. Her husband had put his brothers in charge of their estate. She says they were all on good terms. But since his death, she says, her brothers-in-law have refused to release any money. They insist they are saving it for the couple's teenage children. But, the widow says, when her son asked one of his uncles for some money to cover his college tuition, he was told, "Tell your mother to sell her house."

Feinberg is troubled. While it wouldn't seem to be fair to deduct the insurance payments from her award, he says, if he does raise it, what's to prevent her in-laws from going after that in court as well?

It's just the latest entry in the list of thorny family standoffs Feinberg has been asked to settle: The parents who don't recognize a victim's same-sex partner; the parents who filed fraud charges against a woman claiming to be a fiancee but who they claim is just a gold digger; the widows who learned their husbands had secret families; the fathers who walked out on their kids only to come forward to make a claim after one was killed on 9/11.

Sometimes, he solves the matter by raising the total award. Other times, all he can do is decide the size of the award and let the parties battle it out in probate court.

Feinberg says some of his most painful moments have been seeing 9/11 families fight with each other. "A firefighter's widow stands up to me and says, 'My husband died a hero. He saved 30 lives. You're going to give him $1.4 million, and you're giving $5 million to the accountant who worked for Enron! Where's the justice, Mr. Feinberg?'"

He still doesn't have a good answer. In order to dissuade as many families as possible from suing the airlines, the fund was set up to mirror the US tort system, which essentially puts price tags on things that really shouldn't have price tags attached to them, like lives. Feinberg says the more he has thought about it, the more he believes that if Congress ever creates another fund like this, it might make more sense to give every family the same amount.

Then again, if everyone got the same amount, a lot more people would probably skip the fund and take their chances in court.

t's December 22, D-day for signing up for the fund. At 11 a.m., Feinberg strides up to the flip chart he has erected near the front door of his Washington office. He pulls the cap off his black marker and yells to his aide, Camille Biros, "Whatdawegot?"

She sprints from her office and hands him the latest printout. Of the 2,976 families who had lost someone in the 9/11 attacks, 2,720 had filed with the fund. Carefully, he writes on his tote board: 91.4 percent.

He smiles broadly. All his last-minute family meetings and media interviews have worked. He can now pretty much let go of his biggest fear -- getting calls from families a week after the congressionally imposed deadline, saying the date had slipped their mind and asking to get in.

Still, he's not taking any chances. At 2 p.m., he heads out for another round of TV interviews, in the hope of spurring a few more filings before the midnight deadline. It's an unseasonably warm day as we leave the Canadian Broadcasting Company studio -- the fund is open to foreigners, even undocumented workers -- and head to MSNBC. Feinberg weaves between packs of Asian tourists in front of the White House, past clumps of TV reporters on the lawn breathlessly discussing the elevated Orange Alert. A few blocks later, he stops at a curbside snack stand and plunks down a buck for a pack of vanilla wafers. It's the first thing he's eaten since 5 a.m., besides the clumps of candy that fuel him throughout the day.

The MSNBC interviewer asks him what every interviewer asks him these days: Have you mellowed? Feinberg tells him what he tells everyone: "I had vastly underestimated the intensity of the emotion associated with this program and these families." But as we wait at a crosswalk on our way back to his office, he grabs my arm. "You know, this whole thing about how I've changed," he says, shaking his head. "I think it's been somewhat exaggerated." He says he has ached for the families from day one.

Yet the people closest to Feinberg concede that he is, on some level, a different person. "He has grown in ways I would never have imagined," says his wife, Dede. "He became more sensitive." But much of the change has to do with the new circumstances. "When you hire a lawyer, you want somebody with good judgment and somebody who's going to be tough. Those were strengths that served him well in his career."

Unlike his previous work, when he was dealing with high-level representatives rather than actual victims, and usually years after the incidents, Feinberg began meeting with 9/11 families just months after the attacks. "They were angry and fearful; their emotions were raw," recalls Deborah Greenspan, Feinberg's law partner and deputy special master of the fund. "Ken appears before them and says, 'This is so simple. It's so much of a better option than suing.' That's not what they wanted to hear.

"But people have gotten used to the fund by now," she says. "I think everybody has changed."

We return to Feinberg's office, which is decorated with framed articles about him as well as pictures of his three children, the youngest of whom is a college senior. At 4 p.m., the phone rings. It's John Ashcroft. Their conversation is warm.

Ashcroft concludes by saying, "We'll see what your next assignment is," even though Feinberg still has to process thousands of claims in the next six months.

"If you need me again," he replies, "I'm at your service."

Several minutes later, as Greenspan walks into Feinberg's office, he is still staring at the phone. "That was the attorney general," he tells her. "He said congratulations and thanks for doing such a great job."

The next eight hours are relatively quiet, punctuated by hourly updates to the tote board and a few more media interviews. (As the staff munches on Chinese takeout in the conference room while watching a broadcast of the PBS NewsHour With Jim Lehrer that will feature an interview with him, Feinberg bursts in and yells: "Next up is a report on the Hubble telescope. BORING. Then I'm on after that.")

A minute after midnight, Feinberg bounces up to his tote board one last time. Deliberately, as though he is writing for history, he glides his marker across the chart. Total death claims: 2,833, or 95.19 percent. He smiles and caps the marker. (Because applications only had to be postmarked by midnight, over the next few days the number will climb to more than 98 percent. Even 40 of the 79 people who had originally sued the airlines change their minds and enter the fund. The total number of injury claims -- 4,325 -- is much higher than Feinberg expected. Still, he estimates that the overall price tag of the fund will be around $5 billion, less than Congress anticipated when it created the fund two years ago and feared that many more people had died in the attacks.)

Feinberg takes the elevator down to the parking garage, slides into his dark Jaguar, and plucks out a Cohiba Cuban cigar from under the armrest. He clips the end, strikes a match, and begins puffing away. "This is the only place I can smoke," he says. "It's my moving humidor."

He cruises along empty Washington roadways as Strauss's Der Rosenkavalier plays on the radio. Feinberg has been awake for 20 hours. He looks as if he could run a marathon. "It's all adrenaline," he says between puffs. "A great day."

But as we near his home in Bethesda, the other side of the stunning surge in sign-ups begins to dawn on him. His mind turns to a new deadline. "It's a wonderful milestone," Feinberg says, "but I must say I'm a little apprehensive about the challenge of getting everything done by June 15."

Neil Swidey is a member of the Globe Magazine staff. He can be reached at swidey@globe.com.