Pro Bono Experience: Boston Marathon Bombing Victim

Kirk_Shannonby Shannon Capone Kirk

Viewpoint

On April 15, 2013, I was thankfully in Palm Springs with my family for a wedding. I say “thankfully” because my husband is an ultra-marathoner.  He’d wanted to do the Boston Marathon, but we had to attend my cousin’s wedding clear across the country.  Being three hours behind, I woke up to the unbelievable.  Just like on 9/11, at first I couldn’t process the images I was seeing.  And then red.  We all saw red.  I yelled to my then nine-year-old son to leave the room.

“That’s blood on the pavement on Boylston,” I said.

I hated this feeling on 9/11.  And I hated this feeling on 4/15.  This feeling of the world crashing.  Of incapacity.  Of the deepest empathy for others you can feel—and yet, the competing certainty you are helpless to help anyone.  Later, Fox, CNN, all of them, kept showing pictures of Martin Richard, the boy who died.  A boy.  My son cuddled close on the couch.  I wept.  We went home after the wedding, and life went on as life goes on, and work got busy as work gets busy.  And I remained unhelpful.

A few months later, on June 13, 2013, the Boston Bar Association reached out to the Pro Bono committee at Ropes & Gray seeking assistance for a bombing victim with her One Fund application.  I’d need to meet the victim in person in Salem, New Hampshire, the very next day; she couldn’t converse on the phone given her hearing loss from the bombing.  Being from New Hampshire and suddenly remembering that awful feeling of incapacity, I snapped at the request, hopeful I could do something.  Plus, she was only in Salem.  Salem doesn’t require a plane ticket or visa or passport like a lot of my regular work.  It was literally the least I could do.

Gretchen greeted me kindly at her husband’s office in Salem.  She leaned in with her ear to listen to my “hello,” and then turned to lean into my face to shake my hand.

“You’ll need to speak slow so I can read your lips,” she said.

I started thinking about my mother in these initial minutes with Gretchen.  Trying to explain what I do for a living to my mother, who for as long as I can remember denied having a hearing problem, used to dissolve into a mess of loud words.  A mismatch of understanding at a raucous family dinner table.

“What?” she’d squawk loudly, even though she sat to my caddy-corner left.  Her face would scrunch and her eyes would close.

“….[blah, blah, blah…..] E-Discovery….terabytes….computer forensics…”

“Oh, Never. Mind,” she’d give up, shaking off her obvious annoyance—at herself, at me, I never understood.

The family conversation would go on around her, interjected here and there by her “What’s” until she’d give up, leave the table, and do the dishes.  I don’t think I noticed any of this until now, in retrospect, after working on a Boston Bombing case.

The One Fund application was actually pretty straightforward.  Filling it out, I figured, would be very unlike the work required to craft a preservation plan for firewall logs and ten databases in a data breach case.  I figured I’d be in and out in half-an-hour.  And yet, it was not until hours later when we finished the application.  We spent hours talking, loudly, slowly, repeating phrases, reading lips, undergoing translations of English to English, organizing a labyrinth of medical records and, mostly, distilling a very emotional account into a sterile, one paragraph blurb on her objective, physical injury.  For Gretchen, a human with a real problem larger than simply saying “hearing loss,” it took a while to uncoil the events of April 15th and how they changed her life, physically and emotionally.

Gretchen had already been diagnosed before the Marathon with hearing loss in both ears, the right side suffering from profound loss; the left, also functioning at a deficit, was considered her “good ear.”  So, in moving through the thick Boylston crowd with her fifteen-year-old, she worked hard to focus on keeping her son close to her side.

The first bomb exploded, crashing the air.  She turned her “good ear” toward the blast, unsure of what was going on.  Then, the second bomb ripped through the screaming crowd and this is what did her in.  Now both ears were damaged.

I wanted the One Fund deciders to know how hard it was to be left out of conversations with your own sons.  To hear wind instead of words.  Ringing instead of crisp birdsong.  I wanted them to “see” this invisible injury.  One that now, after the blasts, left Gretchen unable to differentiate peripheral noise, unable to hold conversations with multiple people, left her with increased tinnitus and multiple sounds running constant in her head: crickets, faucets, wind, ringing.  Noises.  Constant noises.  Not distinct voices.  And how voices too, they were all different.  Even her husband’s.  Even her own.  I wanted them to understand that now, Gretchen could no longer enjoy any music, could not separate the different notes.  I tried to imagine working, driving, cooking, running without the tinkling of the piano, the hypnotic waves of a cello, the thud-thud of motivating Hip-Hop, or the soul-soothing guitars of folk.  I wanted everyone to understand how Gretchen could never escape it—because it was always there, absolutely there, yet invisible to everyone else.

But, given the triage nature of the One Fund application—necessary to distribute funds ASAP to those in serious need—we had work to do.  In other words, we had to say how the sector of the hard drive was physically damaged, objectively prove it, and seriously distill, almost avoid, the frustrating, very real emotional side of how business stops when computers break.  As I explained this to Gretchen, and her husband handed tissues for her tears, and as I put her jumble of medical records in chronological order and in the best objective light, I watched her chin quiver and her fists clench.  I watched her retreat to her inner world.

I thought of my mom.

Gretchen was approved by the One Fund for Category D and received the pre-set distribution of funds.  She is thankful for the donations.  And certainly we all agree the focus of the Fund should continue to devote resources and charity to those most critically injured and those who suffered loss of life.  As for hearing loss victims, this too is a lifetime cost.  And a lifetime burden.  There is no cure.  And it’s not going away.

A few months ago, the Boston Bar Foundation’s Society of Fellows asked me to address how helping a Marathon victim impacted me.  It impacted me professionally and personally.  Professionally, I am sure I am just a pin in the hard drive, but I do have a pulse and I have a new knowledge on an invisible injury.  Personally, I hope I’m a better daughter.  How happy I truly am now to see my mother engaged and smiling, sitting with us at the table, wearing her hearing aids. I am better able to understand what she has gained.

Shannon Capone Kirk is a Chambers-ranked E-Discovery Counsel at Ropes & Gray and Professor at Suffolk Law.  Shannon’s international practice manages electronic data in litigation.


Disaster Relief: The One Fund Boston Model

Abbott_Sue McChesney_Lisaby Susan L. Abbott and Lisa A.H. McChesney

Viewpoint

The authors express their appreciation to the many others at Goodwin Procter who were part of the One Fund team, and in particular for the invaluable assistance of Stuart Cable, Mary-Kathleen O’Connell, and Alyssa Fitzgerald.

In the wake of the Boston Marathon bombings on April 15, 2013, Boston Mayor Menino and Massachusetts Governor Patrick proposed creating a charity to benefit the survivors and families of those killed in the attack.  On April 16, Mayor Menino reached out to local businesses Hill Holliday and John Hancock to assist with the creation of the One Fund Boston.  Later that day, before the fund was even incorporated and before Ken Feinberg was brought on as administrator, the One Fund received its first $1 million commitment from John Hancock.

As the One Fund’s attorneys, we at Goodwin Procter had to seek quick incorporation of the fund and apply on an expedited basis for 501(c)(3) tax-exempt status with the IRS.  However, applications for 501(c)(3) status often take up to eighteen months to process, and in addition, obtaining the necessary approval was challenging, due to IRS limitations on the types of distributions that charitable organizations can make to individuals in the context of disaster relief.

Generally, to qualify for tax-exempt status, an organization must show that it will assist a large enough or sufficiently indefinite charitable class so that it is providing a public rather than a private benefit.  In addition, in IRS Publication 3833, the IRS takes the position that an organization cannot distribute funds to individuals merely because they are victims of a disaster, but generally must determine that a recipient lacks adequate financial resources of his or her own.  The IRS therefore had questions about the One Fund’s plans to make distributions without financial needs testing.

The One Fund team worked closely with the IRS to overcome these issues and to show that the One Fund instead met the criteria for a 501(c)(3) tax-exempt charitable organization as an organization that lessens the burdens of government, focusing on the organization’s relationship with the City of Boston and the City’s role in approving distributions.  “Lessening the burdens of government” is an alternative method of qualifying as a 501(c)(3) organization.  As far as we know, this method has not been used before in the disaster relief context.  This approach to the formation of a relief organization allowed the One Fund Boston to accomplish its immediate and ongoing goals for distributions.

On May 14, just one month after the bombings, the IRS granted the One Fund Boston 501(c)(3) tax-exempt status.  The One Fund’s attorneys were able to use procedures for expedited approval and effective dialogue with the IRS to obtain this unusually quick and favorable result.

The One Fund has been a huge success and an important contribution to Boston’s recovery.  All of the $60 million in funds donated to the One Fund Boston through June 26, 2013 were distributed to those who were most affected by the bombings, in accordance with a protocol developed by Mr. Feinberg.  In addition, the One Fund Boston will continue to provide support for those affected and has announced that it will make a second distribution.

Public response to the swift action taken by the One Fund Boston has been favorable, and Mayor Menino noted that in his 20 years as mayor of Boston, he had never seen the business community come together so quickly on behalf of the citizens of Boston.

While the One Fund Boston model will not work in all circumstances, it may be an alternative to more traditional charitable models when there is significant government involvement.  In such cases, it provides an opportunity for the public and private sectors to work together to deliver expedited, direct benefits to those in need as a result of disasters.

Susan L. Abbott is a partner at Goodwin Procter LLP and Chair of the firm’s Tax-Exempt Organizations Group.  She led the pro bono team that incorporated, obtained 501(c)(3) status for, and advised the One Fund Boston. 

Lisa A.H. McChesney is an associate in the firm’s Trusts and Estate Planning Group and assisted with the One Fund Boston application for 501(c)(3) status.