1. Is it too late to supplement my application with new information?

Supplemental information and documentation may be submitted to the Special Master at anytime prior to a hearing.  The Special Master also may accept additional information after a hearing but before a final award is issued.  Supplemental evidence should be submitted as soon as it becomes available.  Do not wait until you have all your supplemental information before forwarding it to the Special Master. 

2. Will the Special Master consider income beyond the 98^th percentile ($231,000)?

With some exceptions, the Special Master will usually only consider income in excess of $231,000 a year in cases of hardship.  Hardship includes serious economic needs such as a child with special needs (e.g., autism, mental retardation, or other medical condition) who requires costly, long-term care or situations in which the surviving parent is suffering from a terminal illness.  There are no specific guidelines or tests to determine hardship.  If you feel that your client would suffer a serious financial hardship if the income used to determine lost wages is capped at $231,000 per year, submit all factual support for your claim to the Special Master for review.

3. What types of circumstances qualify as hardships?

A financial hardship can be recognized as any situation where a significant portion of household income in consumed by extraordinary needs.  This may include supporting other family members, children requiring specialized care, or other unusual circumstances.

4. There is a formula for paying non-economic damages in death claims.  Is there any possibility of receiving an award for non-economic damages in excess of the formula?

Yes, but only in rare circumstances.  In death cases, the fund generally will pay $250,000 for the decedent's non-economic damages and $100,000 each for the non-economic damages of a surviving spouse and dependent. The federal regulations governing the fund give the Special Master the discretion to consider a claimant's overall financial circumstances when making an award.  There are rare instances when the Special Master has awarded economic damages in death claims in excess of the formula.

5. How should I document a claim for replacement of services?

The Fund will compensate victims for the cost of hiring someone to provide the services previously performed by a person who was injured or killed in the September 11^th terrorist attacks.  The cost of replacement services should be carefully researched and documented.  Claimants who have provided an estimate of the economic value of the services provided based on a statistical model have usually underestimated the value of services.  Whenever possible, obtain three written quotes from people or companies who actually provide the services in question.  If quotes were obtained over the phone, memorialize the quotes in an affidavit and submit to it the Special Master.

6. How do collateral offset deductions impact various beneficiaries, and is there any flexibility in how the deductions are taken?

Collateral benefits are deducted from the beneficiary who received the benefit.  For example, if the beneficiaries of a death claim are a surviving spouse and two dependents and the spouse was the named beneficiary of a $100,000 life insurance policy, the $100,000 deduction will be taken from the surviving spouse's share of the compensation fund award.  However, the regulations governing the compensation fund give the Special Master the discretion to consider a claimant's overall financial circumstances in determining how to deduct the collateral benefits.  The Special Master could alter how the deduction is made (for example, by spreading the deduction between several beneficiaries or by altering the amount of the collateral benefit deducted.)  If the method or amount of collateral benefit deduction will create a financial hardship, present the Special Master with factual support for the hardship and request an alternative deduction.

7. How is the hearing structured and are attorneys expected to make a formal presentation?

Attorneys are free to structure the hearing however they like.  The hearings are generally informal and held in a conference room setting.  There is a court reporter present, and the hearing is conducted on the record.  Documents referred to in the hearing are entered and marked as exhibits.  Attorneys may present testimony from whomever they wish. The attorney may conduct a direct examination, the attorney may lead the witness, or the attorney may simply choose to have the witness make his or her own presentation.  The hearing officer may directly question the witness to identify facts supporting an award.

8. Who are the hearing officers?

The hearing officer will be the Special Master or his designee.  Many of the hearing officers are administrative law judges or professionals with similar backgrounds.  To assist with the large number of hearings that must be conducted, Assistant United States Attorneys have been brought in to serve as hearing officers on personal injury claims.

9. Should my expert testify at the hearing?

An expert may testify at the hearing, but such testimony is most likely to be beneficial only if the expert presents new factual information that might not otherwise be considered.  This is especially true for economic experts.  A boilerplate economist report which simply takes issue with the Special Master's economic assumptions does not seem to add much to a claim.  However, if the economist identifies an additional source of income (i.e., income, like replacement of services, which is not contemplated by the Fund's presumed award tables) as the basis for his or her opinions, that might be beneficial to the claim and result in a higher award.  Medical experts may offer beneficial opinion testimony regarding medical causation and future medical treatment.  For claimants suffering from posttraumatic stress disorder, a testifying medical expert should avoid using the term "posttraumatic stress disorder" because that condition has been determined not to be compensable by the Fund.  Medical experts should simply address it as emotional distress arising from the physical trauma.

10. How long will the hearing last?

Most hearings last less than an hour.  It is rare for a hearing to last more than 90 minutes.  Hearings on personal injury cases with extensive testimony regarding complex medical treatment and ongoing medical care may take longer than hearings for death claims.

11. If a claimant is not comfortable speaking at the hearing, is it better to have them prepare something ahead of time or have someone else speak on their behalf?

Nervous claimants may be more comfortable preparing a statement in advance.  Attorneys might also consider videotaping a conversation with the claimant about the impact of their loss and playing the video at the hearing.  If a client is nervous or forgets to mention something important during their testimony, just call the Special Master's office after the hearing and provide the additional information.  Claimants should not feel like they have missed their one chance to mention something they felt was important.

12. Do different laws govern the distribution of different parts of the award?

Yes.  The award for non-economic damages is distributed according to the wrongful death statute of the jurisdiction of the decedent's domicile.  The $250,000 representing the decedent's non-economic damages are considered an asset of the estate distributed according to the will or according to the intestacy laws of the state of the decedent's domicile if there was no will.  The $100,000 paid for the non-economic damages of each surviving spouse and dependent is paid directly to each beneficiary.

13. How will the check be made out?

Checks will be made payable to the individual beneficiaries identified in the distribution plan.  If the beneficiaries have not agreed on a distribution plan, a check for the entire award may be made payable to the decedent's estate.

14. How should attorneys address disagreements among family members over distribution of the award?

It is in every beneficiary's interest to reach some consensus over a distribution plan.  A failure to reach an agreement among all beneficiaries will result in a delay of payment, and payment instead being made to the estate.  When the money is paid to the estate, the precise distribution will have to be determined by a probate court.  The legal costs associated with such a proceeding will diminish the amount of money that can be distributed to the beneficiaries.  By working together, interested parties can often increase the amount of the award (e.g., by recognizing partnerships, accepting additional dependents, or possibly agreeing to alternate deductions of collateral benefits), thus increasing the possibility that all beneficiaries' needs can be met in a unanimously supported distribution plan.

15. How long after the hearing is payment received?

A final award is issued and payment is authorized two to three weeks after the hearing.  Once payment is authorized, it may take up to two weeks to process the direct deposit of funds.  If a paper check is required, it may take a week or two longer.