It is precisely that “existential finality” that has the trial bar worried. The Feinberg fund represents an alternative model for the resolution of big disasters, one that moves trial lawyers from center stage to a spot in the chorus. Over the last few decades the trial bar has built what amounts to a private-enterprise regulatory machine, compiling an impressive string of victories over — or at least a series of large settlements from — the most powerful corporations in the world. Some call them parasites and label their style of litigation the “American disease.” Others see them as the last truly effective check on corporate power left in the U.S. system. With the Feinberg model comes the prospect of their further diminishment, a blueprint for a future without big-time trial lawyers. And they are not willing to accept that future without a fight.

Does the settlement fund represent a superior alternative to trial-lawyer-financed litigation? For some claimants, undoubtedly it does. Since increasing his efforts in September, Feinberg has proved generous to workers and other small claimants seeking compensation for lost wages. But for others, principally business owners, the fund has so far been a bust. John Nelson, president of Bon Secour Fisheries, a seafood processor and supplier on the Alabama coast, neatly sums up the difference. He says that while his workers have been compensated by the fund for lost wages, his company has received only about 10 percent of its claimed losses. “I think everybody is prepared to pursue litigation, but we’d much rather not have to,” says Nelson, who has retained a lawyer (not Buzbee). Jo Bonner, a Republican congressman whose Alabama district encompasses the state’s Gulf Coast, says Nelson’s experience is a common one among his constituents. “I know a lot of money has been paid out, but many, many, many haven’t been paid, have been denied or gotten only partial payment and no explanation why,” Bonner says.

Feinberg says he is working hard to get people compensation. “I want to discourage claimants from litigating, and it’s the claimant I’m thinking about here,” Feinberg says, arguing that his standards for documenting losses are far more liberal than those that people are likely to encounter in court. “I want to see these people made whole, and quickly, and not after years of litigation,” Feinberg says. But while Feinberg casts himself as a neutral arbiter seeking to get victims just compensation, the fact that he is paid by BP has inevitably led to a perception among many spill victims that he is BP’s guy. Trial lawyers frequently note that Feinberg, despite repeated promises to do so, has been slow to reveal details surrounding his compensation and that the initial criteria he set up for paying claims was in many ways more onerous than required under the Oil Pollution Act. (In October, Bloomberg reported that Feinberg’s firm was being paid $850,000 a month by BP.) “This fund is being publicized as some kind of magnanimous gesture, when in fact BP is only doing what is obligated to do by law,” says Anthony Tarricone, a Boston-based trial lawyer and recent past president of the American Association for Justice. Trial lawyers also argue that there is a social cost to using an administrative fund like Feinberg’s in lieu of litigation. “BP does not want to see a trial, they want to quietly sweep this thing under the rug,” Stuart Smith, a lawyer in Louisiana, says. “But I’m going to do everything in my power to make sure a jury finds out what happened.”

Image W. Mark Lanier, Houston Baptist Sunday-school teacher who obtained a landmark $253 million verdict (later overturned) against Merck over the drug Vioxx in 2005. Credit... Mike Mergen/Bloomberg News

So far most of the skirmishing between Feinberg and the trial bar has been behind the scenes, but that may change. On Nov. 23, the initial emergency phase of the compensation-fund payout comes to an end. During this phase, claimants have been able to get up to six months’ compensation with comparatively little documentation and without having to give up their rights to sue BP. That will not be the case in the next phase, during which claimants will have to sign releases agreeing not to sue BP, and possibly all other potential defendants, to get their final payment. Trial lawyers have pushed back against the idea of these releases, arguing that no such requirement appears in the law. “If Ken only offers them partial compensation — which, trust me, he will — then trying to get them to sign away all their rights for a reduced number is outrageous,” says Perry Weitz, who has served as a lead negotiator with Feinberg on some of the trial bar’s issues.

In the last month Feinberg moved to address some of the trial bar’s concerns. He loosened the so-called proximity requirement, which made it difficult for hotel and restaurant owners not in the immediate zone of the spill to claim damages, and agreed to reverse his stance against making payments to claimants while they negotiate a final settlement. Feinberg also suggests that some in the trial bar might be surprised by the size of the final offers he will be making. “If you want people to waive their right to sue, you better be pretty generous so that they will assume the risk of being better off with a lump-sum payment now.” Of course, Feinberg notes, participation in his fund remains purely voluntary: “If you think you can get a better deal in court, then by all means, go litigate.” That certainly remains on option for some, like Keith Overton, who is also the chief operating officer of TradeWinds Island Resorts, which Buzbee represents. “Unless Feinberg changes his position on losses occurring further out than two years from now, I don’t think he’s going to offer a fair long-term settlement,” says Overton, who also says he is unwilling to sign away the rights of his business to sue and leave money on the table.

Determining just where Overton and other potential litigants would have to go to bring their cases against BP if they chose not to settle with Feinberg was the question that drew an elite contingent of the American trial bar into courtroom No. 3 on the sixth floor of the James A. McClure federal building in Boise, Idaho, at a little after 9 a.m. on Thursday, July 29. Crowded into that remote outpost of the federal judiciary was a veritable loya jirga of the nation’s top trial lawyers. From California came Elizabeth Cabraser, the pixieish San Franciscan who is helping to lead the legal assault against Toyota for sudden-acceleration problems with its vehicles. Seated nearby was Perry Weitz, Manhattan’s king of asbestos litigation. At a table up front, Russ Herman and Daniel Becnel, two old bulls from Louisiana who helped fight the tobacco wars in the 1990s. Behind them, W. Mark Lanier the boyish-looking Texas tort lawyer and Baptist Sunday-school teacher whose pride of place was from scoring the first big verdict against Merck in the Vioxx litigation. Lounging against a far wall in a tailor-made light blue pinstripe suit, brown shoes and no socks was Buzbee, and seated next to him was his friend Mikal Watts, whose bald pate and bulldog countenance belie the Texas lawyer’s genial disposition. Watts, by his count, accumulated 40,000 clients interested in suing BP in the months after the blowout.