Keeping up with Ken: an interview with ‘Playing God’ director Karin Jurschick

For the documentary Playing God, making its world premiere at the Hot Docs Canadian International Documentary Festival this week, German documentarian and journalist Karin Jurschick takes a close look at an American lawyer who has one of the hardest jobs in the world.

Attorney Kenneth Feinberg has become the face of a very specific, tricky sort of litigation. Since the mid-1980s, the Brockton, Massachusetts native has been brought in by federal, state, and local governments and corporations big and small to help determine financial compensation for victims of large scale tragedies. Since he was brought in to determine compensation for Vietnam War veterans exposed to the effects of Agent Orange, Feinberg has been the go-to lawyer to negotiate cash settlements for victims of mass casualty incidents, like the 9/11 terrorist attacks, or major disasters that can destroy the livelihoods of people, like the recent BP oil debacle along the American Gulf Coast. Recently, Feinberg has been brought in by some companies to look a more looming catastrophe: pension plans that are rapidly going bankrupt to a point where retirees could be forced into taking massive cuts from their nest eggs.

Putting a monetary value on a person’s hypothetical life and asking what would have happened if they didn’t get killed or injured is far from an exact science, and Jurschick’s film finds Feinberg making it known that he understands any and all personal criticism levied against him by victims and claimants. Through spending a great deal of time with Ken Feinberg and those who have received or declined judgments from the parties he represents, Jurschick paints a portrait of a complicated man with a complicated, often unenviable and thankless task that he still finds a great deal of time and energy to perform despite recently becoming a septuagenarian.

We caught up with Karin Jurschick last week on the phone from Germany to talk about Playing God and her time spent with Ken Feinberg.

Ken seems like a very busy person, so what was it like trying to get access to Ken, and to get him to allow your filming of his process?

Karin Jurschick

Karin Jurschick: It was astonishingly easy to get access. We just basically went there and we talked to Ken Feinberg, and he, for some reason, gave us his trust that we would do this project properly. I went to him with my producer, Birgit Schulz from Bildersturm Filmproduktion, and just talked to him. Of course, we had a synopsis of what we were going to do and what we wanted to do, and you might know that he wrote two books, and I felt like now at the age of seventy, he might want to have more time for something like this, and he wanted to have something akin to a “review,” let’s say, of his life from outside; that he wanted something that he didn’t write himself.

Following him through his day was the real challenge. From phone call to phone call and from day to day was tough. We were a crew of three people, and compared to him, we were young, so he would always joke that he would get us, and that was true. If I could have this kind of energy at seventy, I would be happy. (laughs) I think now with the new government – which is a whole different sort of situation – that he would never want to stop working. To see someone in that kind of a job who is so energy driven is something I had never seen before.

When you were putting this together and you were looking for people who had been involved with settlements Ken helped to create, did talking to these victims and claimants change your opinion of Ken or lead to a different line of questioning whenever you were able to spend time with Ken?

Karin Jurschick: Yes, of course. We could find, with the help of our American researchers, very different kinds of people, from retirees and former truck drivers from Minnesota to fishermen down in Alabama and Louisiana. For me it was also a challenge to learn and keep track of all these different dialects. (laughs) But it was also a journey through America, and some of these people were putting all of their hope into Ken Feinberg, and some of them were very fond of him. The retirees we talked to really liked him, but the people involved with the BP settlements were very critical of him. They saw him as this Boston-born, Washington-based lawyer who didn’t have their best interests in mind. If you talk to them and spend time with them, then you get to know their perspective, and it was always a different perspective on Ken depending on where you went and who you talked to. And I liked that. I didn’t want to have a pure hero story or a pure look at an evil Washington lawyer. I exactly wanted it like that.

Did you notice that Ken would react differently when you would ask him about a tragedy like 9/11 or the Agent Orange litigation that started his career versus a situation where he’s under the employ of a corporate entity, like the BP litigation?

Karin Jurschick: I have the feeling that especially when it came to something like 9/11, where he had to meet with family after family, really hit him in a very different way. That was something so far outside of his normal business, even if he’s a professional lawyer known for these kinds of settlements. To be confronted with all that loss and grief made him question his own role in these situations. Sometimes, I think he might hide behind his job and the letter of the law, but when it comes to these victims, he’s never daunted. He’s always questioning how he does what he does and how he could ever put a value on a human life. That’s always a challenge for him.

When it comes to talking about his role with corporate entities, we got into a very uncomfortable situation when talking about the BP compensation fund. I think that was, for him, a worst case scenario, where he had a lot of critics and people saying that he was being paid by BP. He could say however often he wanted that his judgments weren’t beholden to BP, but, of course, nobody believed he was really independent of BP. Today, even, when I ask him a question that might even be critical, those were the only moments where he ever got angry. I could always see it in his body language even if he didn’t say it. I think there’s definitely a difference in terms of the emotional involvement and his reactions.

That speaks to how Ken doesn’t seen anything in black and white, but it’s also understandable that people who have been through a tragedy are often so stricken with grief that all they can see is black and white. It’s interesting to see him in something like the BP compensation fund, where his job takes on an entirely different meaning because the tragedy in that case was still unexpected, but also manmade and more likely that not preventable.

Karin Jurschick: Right. Ken can, in a way, be a bit of a hero, but there are a lot of critics who ask why a firefighter’s life could be worth less than the life of a stock broker. There are lots of complaints like that, but Ken understands that, and he just explains that congress or whatever entity he’s working for wanted him to do it that way. But with BP, he was suddenly in a position where a corporation was very comfortable having him handle this litigation. For them, having him as a face in front meant he took a lot of the heat and most of the trouble, and I think he wanted to do things very lawyer-like and professionally, but as you saw in these town hall meetings he would attend, he was really challenged there. I think today, this is something that’s nagging him. Even if he says that BP should pay him and that taxpayers shouldn’t pay for such litigation, I think he understands the conflict.

Do you think that Ken becoming the face for this kind of litigation has made his job harder to do?

Karin Jurschick: I don’t think so. In the beginning, I asked him, “Why you? Why are you so successful?” He said, “It’s because success sells. If you have one success, naturally you’ll be asked to do it all again.” For him, it was very easy.

But on the other side when it comes to him dealing with the retirees and their dwindling pension plans, that was something he took on because he genuinely cares about these people. This is a universal problem, even in Germany, where we see people dealing with similar problems regarding pensions. I was taking that all in, and these people had so much hope that they placed in him, but all he could say was that he was trying to perform a special task for them, but that he couldn’t rescue their pensions. You can see in those town hall meetings that people think he can really help that out, and of course that comes from his past successes. They expect a lot because of that.

His involvement with these broken pension plan benefits is a unique thing for him to be brought in on, because now he’s not being brought in to mitigate in the wake of a tragedy, but because there’s a catastrophe that he can see looming and that he’s powerless to fully stop it.

Karin Jurschick: That’s true, and that’s something that I think hurts him very deeply. If anyone asks him about it, he always says that he isn’t on anybody’s side, and that he’s on the side of the law. But I could feel it, and I could hear it. He was really pissed about what was happening to thee retirees. Maybe it’s because he’s now in his seventies and he’s at a similar age. He grew up in Brockton, Massachusetts, and his father owned a tire business, so he’s coming from a middle class working family, and I think this really touched him. He couldn’t really help, though. As you said, he can only really delay the inevitable. But what I like about him is that he’s honest. He never plays a role.

It’s like when he was brought in to work on the Wall Street collapse, and he makes these massive cuts to corporate executives that are undone by the companies themselves. As he put it about that situation, his being there was just a sideshow. He’s quite clear. He’s not making more out of it than he has to, and that I like about him.

Do you think that he gets tired of listening to the same criticisms of his work over and over again?

Karin Jurschick: (laughs) Yeah. He has a lot of influence over the cases and situations he’s brought in to work on, but I asked him once if he could imagine himself as a politician who had more influence, but he said no. He said he would go crazy. He always says that he can solve problems in the frame of laws that already exist, but of course, he sees what happens in a situation like what happened with the Wall Street situation. Congress wanted him there because the Department of the Treasury didn’t want to be blamed for this, but at the same time, America could be seen as being kind of Communist if you take away the bonuses of people, so they asked him to take away the bonuses, probably knowing that these corporations would just re-implement them, anyway. He’s always said that he’s more widely known as a Democrat, but he’s often brought in by Republicans to do this kind of thing. He knows that he’s a buffer for them, and if there’s any blame to be assigned, it will reach him first. They can say that they managed things well, and he’ll take most of the blame, but somehow he still likes his role. I never saw a more comfortable man in his job. He’s never longing for more than what he already has. I halfway expected him to say that he wished he had more influence or that he wanted something more, and I was astonished that this wasn’t the case.