That evening they went downstairs to the Emperor of China restaurant and ordered drinks at the bar. Schlichtmann asked the bartender to turn on the news so he could watch himself. He made the bartender flip the channel back and forth between the two stations so that he’d miss none of his performance.
While Schlichtmann watched himself on the news, Conway watched Schlichtmann. He knew that Schlichtmann would spend a good deal of time on this case, but he reminded himself that Roisman would be in charge. Roisman would do most of the work. They were just the local contact. Conway told himself he wasn’t worried.
Rule 11
1
Every Wednesday afternoon, from February until May, Jerome Facher would leave his office in Boston shortly after three o’clock and take a subway to Harvard Square in Cambridge. The early winter dusk would be settling over the city by the time Facher disembarked from the subway and walked several long blocks up to the Harvard Law School. Facher was sixty years old. He had narrow shoulders, a small, spare frame, and neatly trimmed gray hair. He was the chairman of the litigation department at the Boston firm of Hale and Dorr, and for the past twenty years he had also taught a course in trial practice at Harvard. He still taught from the same textbook, now dog-eared and stained, that he had used in his first year of teaching. He carried it in a battered black litigation bag that was usually heavy with deposition transcripts, motions, and interrogatories from real trials. Some years ago the bag’s leather handgrip had snapped under just such a load. Facher had twisted a coat hanger into a new grip and wrapped it with adhesive tape. When a seam burst, he repaired that with more tape, liberally applied. He owned several other litigation bags, each identified by decals of cartoon characters he’d once found in a cereal box. This particular bag, which might have been a hobo’s suitcase, was his favorite. It was known as the pig bag because it had a Porky Pig decal on it. In the years he’d carried this bag in and out of courtrooms, to home and to work, Facher had not lost a trial. Some trials required the use of several bags, but Facher always brought along the pig bag. “You don’t change your socks in the middle of the World Series,” he would tell young associates at Hale and Dorr.
In his classroom at Harvard, Facher would sit at a plain wooden table in the well of a room that was shaped like a small amphitheater. Every year he faced fifteen new students, along with several first-year associates from Hale and Dorr who had come to learn from the master. Behind Facher’s thick glasses, his eyes were heavily lidded, as if he were on the verge of dozing. During class and in the courtroom, he often pursed his lips in a skeptical and disapproving manner, like a candy-store proprietor guarding the goods against young hooligans.
Each week he assigned his class a case from the trial practice textbook and appointed students to conduct mock examinations. One Wednesday evening he told a young woman to represent the plaintiff. Until now, this student had not uttered a word in Facher’s class. When Facher himself had been a law student at Harvard, in the late 1940s, he’d been reticent, too. He had felt intimidated by the brilliance of his fellow students, most of whom had graduated from Princeton, Yale, and Harvard. Facher had attended Bucknell Junior College. At Harvard he had lived each day in fear that a professor would call on him. When other students responded to a professor’s query, Facher would say to himself, My God, I didn’t think of that. During his three years of law school, he could recall speaking aloud in class fewer than a dozen times. But he’d gotten high grades and he’d made Law Review, the mark of academic distinction.
Now, as a teacher, Facher had changed his modus operandi. He maintained a steady stream of commentary. As the shy student struggled to build the plaintiff’s case, Facher interrupted with a running critique of her methods. He did not feel much sympathy for her. Next year, she would probably have a job as an associate in a big firm in New York or Chicago, earning seventy thousand dollars a year. (Based on this performance, Facher thought he would not hire her at Hale and Dorr.) After thirty minutes the woman had made little progress. Her original strategy had been thwarted by objections from her adversary. Facher gave her some guidance, but his commentary became increasingly acerbic. In annoyance, he fiddled with his tie, tapped his fingers, straightened material on his desk. The woman attempted to enter a document into evidence and the opposing side objected on the grounds of authenticity.
“Now what are you going to do?” Facher asked her.
The young woman looked down and shuffled through her papers but said nothing. Her hair fell in front of her face, covering her eyes. Facher stared at her. The silence grew longer.
Finally another student suggested hiring a handwriting expert to testify to the authenticity of the document.
“What?” said Facher in irritation. “And pay five thousand dollars? Far too complicated.” To the young woman, he said, “What are you going to do? Give up? Tell the senior partner you lost the case? Make a living selling cheeseburgers?”
The woman, head down, shoulders quivering, silently wiped a tear from her cheek.
Another student said, “Five-minute recess, Your Honor?”
Facher ignored the request. “This is an intellectual profession. You are not driving nails into a board.” Although he realized suddenly that the student was crying (in twenty years of teaching, this was the first time it had happened), Facher decided a recess would only call attention to her plight and embarrass her more. “You ask the witness: ‘Who prepared this document? Where did that happen? Who was present? Did your secretary type it?’ ”
The class was silent and uneasy.
“Little questions,” continued Facher. “Little bricks build big walls. Too many of you are afraid to ask simple questions. The tools of the trade are the English language and the rules of evidence.”
Facher’s temper seemed to grow shorter as the day grew longer. The reason for this, he once speculated, was that he suffered from chronic insomnia. But by now he was feeling bad for the student. “Go slowly,” he told her, not unkindly. “Ask one question at a time, and you’ll find there is a rhythm to it.”
And then, to turn attention from her, he said to the class, “Why wasn’t there an objection to this document as hearsay?”
“Because it’s original?” ventured one student.
Facher sighed. “The Boston Globe was original this morning and there’s more hearsay in that than you’ll find in your first five years as a lawyer. You’re expected to make objections. Keep evidence out if you can. If you fall asleep at the counsel table, the first thing you say when you wake up is, ‘I object!’ ”
After class, Facher would often return to his office and work until midnight before departing for home. He owned a condominium in Arlington, three miles from the law school. He lived there alone, his only companion an aged cat. He had been married once, for seventeen years, but that contract had been dissolved long ago. As a young lawyer, a skillful cross-examination would make his heart soar, and he rarely resisted opportunities to hone his skills. He used to practice on his wife. “I can’t prove it,” he once mused, “but I bet trial lawyers have more marital problems than any other type of lawyer. I wasn’t the greatest husband in the world.”
After his divorce, he began to work weekends and to experience sleepless nights. He’d lie awake, conducting cross-examinations in his head for hours. He found a soothing quality in the staccato rhythms of cross-examination, but he still couldn’t fall asleep. Once, when his insomnia became intolerable, he sought relief at the Harvard Health Center. He was placed in a dimly lit room, recumbent on a comfortable chair, with electrodes monitoring his pulse, blood pressure, and respiration rate. A therapist gave him instructions in deep breathing and relaxation, and told him to conjure the most pleasing thought he could. He visualized an afternoon at Fenway Park, the Red Sox ahead by a run and their ace pitcher on the mound. In the laboratory he excelled at relaxation. In his own bed, where there was no one to marvel at his expertise, no one to compete against, he lay awake, furious at his inability to s
leep.
Two hundred lawyers worked at Hale and Dorr, eighty of them in the litigation department. Some Boston lawyers thought that Hale and Dorr most resembled the big New York firms that specialized in what they called “bare-knuckle” litigation. In an era when many corporate lawyers never see the inside of a courtroom, Facher had tried more than sixty cases and won most of them. “I love to try cases,” he once said. “That’s the fun of being a lawyer. I’ve never had an unhappy day at Hale and Dorr.”
The law firm occupied ten floors at 60 State Street, a glass and concrete skyscraper in downtown Boston, two blocks from the federal courthouse. Although the building was modern, the law firm’s reception rooms, with thick Oriental carpets, Chinese vases, and dark oiled wood, gave the appearance of an old and venerable practice. Facher’s office was on the twenty-fifth floor, across from the firm’s law library. The office was small in relation to Facher’s stature in the firm. He had been offered more spacious quarters on the twenty-seventh floor, but he had declined. He didn’t spend much time in his office anyway. He would stop there in the morning to check the mail and phone messages and then he would vanish to one of his many hideouts, as he called them, where he could work without interruption.
He had hideouts on several different floors, but his current favorite was on the twenty-first, at the end of a windowless corridor, behind a heavy steel door. The door opened into a large, dimly lit storage room that served as a warehouse for the firm’s moribund files. Dozens of gray metal filing cabinets, their drawers filled with legal papers, lined the walls. The overflow was stuffed into stout cardboard boxes that were stacked on top of the cabinets and on the floor, pyramids of paper reaching up to the ceiling. Some acoustical panels in the ceiling were missing, and electrical wires, wrapped in black tape, hung from the dark cavities. Near the center of the room, in a pool of lamplight, Facher had assembled three large tables to form a desk on which more paper—depositions, briefs, motions, affidavits—had accumulated. Piles of legal memoranda had taken root on a sagging, threadbare, mustard-yellow couch, a piece of furniture that would never be exposed to the soft lights and thick carpets of a Hale and Dorr reception room.
Facher would sit amid these files in his shirtsleeves, the breast pocket stained by a leaky pen, his collar and cuffs frayed. He looked like an aging clerk caught in the backwater of a large bureaucracy, yet one hour of his time would cost a client several hundred dollars and he earned more than he could ever spend.
He was a very frugal man. His partners had seen him bring a plastic bag to the firm’s Friday lunch buffet and stuff it with leftovers to take home and freeze. He hated going out to restaurants, even if someone else was paying. He usually ate at his desk, from little napkin-wrapped bundles of celery and cauliflower or stale pieces of cake salvaged from buffets. “I hate waste,” Facher liked to say. “I’m economical in my life. Some would say cheap.”
Those who did not know him well tended to mistake his frugality for miserliness, but he cared little about accumulating money. When he bought his condominium in Arlington, his partners advised him to take out a mortgage so he would have at least one tax deduction. But Facher paid in cash. He viewed the interest on a mortgage as a waste.
Some senior partners had platoons of younger lawyers working on their cases. Facher, economical as ever, would assign only a junior partner and one associate to each of his cases. He did not readily trust the work of his subordinates. He was much harsher with them than with his students. In earlier years he would send what became known as “black hand” memos to those whose work especially disappointed him. “I think we made a mistake hiring you,” he’d write. “Is English your first language?” On the draft of a brief, he would scrawl: “Bullshit! Who’s going to believe this crap?” and “Why are you wasting my time?” Facher believed he had mellowed with age. Now he might write: “I think this is poorly written and poorly reasoned. Why don’t you tear it up and start over?”
Most associates feared working with him. Yet those who survived his tutelage usually felt great affection for him. They were known around the firm as “Jerry’s boys.” They believed he was the best teacher in the firm, but even so, most would not choose to work with him again if they could avoid it.
The Woburn case arrived on Facher’s desk in the last week of May 1982, sent to him by the assistant general counsel at Beatrice Foods in Chicago. Facher usually had thirty or forty cases in various stages of development, some of them several years old. He had lost a few trials in his career, and he had also settled many cases before trial, but he’d never seen a case that he thought he could not have won. “Every civil case can be won,” he once told his Harvard class.
He had many important corporate clients, but none was larger or wealthier than Beatrice. One of Beatrice’s lesser-known divisions, the John J. Riley Tannery in Woburn, was now alleged, read Facher, to have “contaminated with toxic chemicals … the groundwater used by plaintiffs and plaintiffs’ decedents for drinking and household purposes” and to have caused the deaths of five children.
It was, on the face of it, a personal injury case, and most such cases tended to be simple matters compared with the commercial litigation that Facher was used to. Yet he saw right away that there was nothing simple about this complaint. There was a long list of plaintiffs, each purportedly suffering “an increased risk of leukemia and other cancers, liver disease, central nervous system disorders, and other unknown illnesses and disease.” The burden of trying to prove such allegations—if they could be proven, which Facher seriously doubted—would be daunting, not to mention very costly.
Facher had heard about other big cases of this sort, environmental cases alleging all kinds of dreadful injury. They seemed to have come into vogue recently, but none of them had ever amounted to anything. This case didn’t worry him. The complaint, however, had to be answered, and that required sending a lawyer out to Woburn to speak with John J. Riley, Beatrice’s manager at the tannery. Facher gave the job to a junior partner, a former Harvard student of his named Neil Jacobs, who was known in the firm as one of Jerry’s boys.
Neil Jacobs had met John J. Riley once before, while working with Facher on a minor matter, a breach of contract claim against the tannery, and he remembered the old tanner well. Riley was not the sort of man who faded easily from memory. He possessed an incendiary temper, and he was six feet tall, with an immense girth, limbs thick as tree boles, and a heavy, florid face. He had begun working at the tannery when he was seven years old, sweeping the beamhouse floor for his father, who had started the business in 1909, when twenty or more tanneries had operated in Woburn. The Riley operation was the last of them, and Riley himself was Woburn’s last tanner.
In many ways that was a tribute to Riley’s business acumen. He was in his mid-fifties now, a crafty, intelligent man, college-educated, and proud of what had once been the family business. He resented in particular the frequent complaints of east Woburn homeowners about odors from the tannery. He tended to regard such complaints as personal affronts. He himself had lived most his life in east Woburn, less than a mile from the tannery. He had once confronted a neighbor who had written an article about the tannery stench for the Civic Association Newsletter. Banging on the neighbor’s door one evening, he had stomped uninvited into the living room, put his thick finger to his neighbor’s chest and yelled that he, Riley, was a big taxpayer in the city, and by what right did the neighbor slander his business in such a manner? The neighbor, at first taken aback by the verbal tirade, finally told Riley to get out of his house.
New, more stringent environmental regulations also infuriated Riley. He made no secret of his belief that environmentalists were conspiring to drive him out of business, as all the other Woburn tanneries had been driven out. A few years back the state had ordered him to build a waste-treatment facility at a cost of a million dollars. Riley couldn’t afford it. Around that time he heard from another tanner in the Midwest that Beatrice Foods was interested in acquiring a tan
nery because the company needed a steady supply of leather for its consumer products. Riley decided to sell the family business to Beatrice. He took no joy in this, but he stayed on as tannery manager, as Beatrice had required, at a handsome salary.
Jacobs drove out to Woburn to interview Riley. They met at the door of an old, dilapidated white frame house that served as the tannery’s administrative offices. In a small, cluttered conference room, Riley told Jacobs that the lawsuit was nothing but lies. He had never dumped any chemicals on his property. He had never even used TCE. He admitted that the tannery had used tetrachloroethylene—“perc”—for a few years in the late 1960s when he had a contract to waterproof leather for U.S. Army combat boots. But Riley claimed there had been no waste solvent from that process.
Jacobs asked Riley about the fifteen acres cited in the complaint as the source of the TCE contamination. Riley explained that his father had purchased that land from the city some thirty years ago, in 1951, and had installed a production well there for the tannery. Aside from that, said Riley, the land was completely undeveloped, nothing but woods and underbrush. It was possible to walk from the tannery to the fifteen acres, but Riley preferred to drive. It took only two minutes. He and Jacobs got into a station wagon and Riley drove out of the tannery parking lot, turned left onto Salem Street, and then, fifty yards later, turned left again onto the dirt road.
Heading up the dirt road toward the fifteen acres, they passed Whitney Barrel, with its hundreds of 55-gallon drums, and the rusting hulks in the junkyard of Aberjona Auto Parts. Riley stopped to open the metal gate that had barred Schlichtmann’s way, and drove onto the fifteen acres. Jacobs noticed more barrels along the side of the road, on the scrubby, hard-packed earth. These belonged to Whitney, Riley told Jacobs. The road was well traveled and clearly defined, although as Riley drove on the foliage grew more dense and tree branches slapped against the station wagon. After about a hundred yards, Riley stopped the car and Jacobs got out to take a look around. Twenty paces off the road, Jacobs noticed a large pile of debris. He walked closer, treading carefully—he was wearing a suit and a pair of good leather shoes. The pile, which later would be known as Debris Pile E, contained some rotting timber and several 55-gallon barrels in various stages of decay, one of them oozing a dark, thick material onto the ground. There were some corrugated cardboard containers with plastic linings used for packing chemicals, pieces of rusted sheet metal, several pesticide containers, and a pair of discarded gloves, a leather boot, a long-handled brush, and a collection of beer cans. The earth was darkly stained, and a sickly, nauseating chemical odor pervaded the air. A few yards further into the brush Jacobs could see another pile of debris and more barrels, overgrown with weeds and saplings.
A Civil Action Page 10
