A Civil Action

by Jonathan Harr

  Jacobs poked around the pile and asked Riley if he knew where the material had come from.

  Once again Riley said he had never dumped anything on this land. Anyone could have driven up the dirt road and dumped debris there, he added. He knew that Jack Whitney, owner of the barrel company, used to store some large oil tanks on the land. He’d had a run-in with Whitney, told him to get his tanks off the land. Whitney did not run a clean shop, observed Riley.

  When they returned to the tannery, Riley took Jacobs on a brief tour of the plant. They went through the beamhouse, where the hides were soaked in water, limed, and dehaired, and the tan house, where the skins were pickled in tanning liquors and fats and then dyed. Behind the tannery building, Jacobs saw a settling basin containing a thick, malodorous sludge, the waste product from the tanning process. Each day the tannery produced half a million gallons of wastewater that was pumped into the basin. When the solids had settled to the bottom, the liquid was flushed down the sewer and ultimately discharged into Boston Harbor. The tannery had been identified by the state as the second largest polluter of the harbor, and the harbor was the most polluted in the nation. It was for this reason that the state had ordered Riley to build a million-dollar waste-treatment facility, and that, in turn, had led Riley to sell the tannery to Beatrice Foods.

  The waste-treatment facility still had not been built, but that had nothing to do with this lawsuit or the TCE in wells G and H. As far as Jacobs was concerned, the fifteen acres had been contaminated by third parties—by Whitney, perhaps by Aberjona Auto, and by others unknown.

  Back in Boston, Jacobs began working on the reply to the plaintiff’s complaint. It was not hard labor, since most of the responses required only standard, time-tested language: “Defendant Beatrice Foods Co. lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 45 of the Complaint.” Jacobs wrote that response sixty-five times, altering only the paragraph number.

  Paragraph 53 of the complaint asserted that the fifteen acres “consists of wooded field and marshlands. There is a well defined dirt road located next to the marshland along which is [sic] deposited numerous tanks and drums. The drums are in various conditions: new and rusted, open and closed. Drums have also been deposited near the railroad tracks. There are some areas of distressed vegetation, indicating spills of hazardous materials.”

  In response, Jacobs wrote: “Defendant Beatrice Foods Co. admits that the land consists, in part, of wooded fields and marshlands and has a dirt road through a portion of it. Defendant Beatrice Foods Co. denies the remaining allegations contained in Paragraph 53 of the complaint.”

  Although Jacobs had seen the barrels with his own eyes, he was not about to make such an admission on behalf of his client. Among defense lawyers, this, too, was part of the time-tested tradition of the law. The burden of proving each and every allegation rested upon the plaintiff, upon Schlichtmann and Roisman.

  When Jacobs finished a draft of the reply, he brought it to Facher, who read it quickly and gave his approval. Facher was preparing a big commercial case for trial and he had more pressing matters on his mind.

  2

  The other defendant in the case, W. R. Grace, was represented by a lawyer named William Cheeseman, a senior partner at the Boston firm of Foley, Hoag & Eliot. Unlike Facher, Cheeseman immediately regarded this lawsuit as a very serious matter. In part, that had to do with Cheeseman’s client. On the day Cheeseman learned of the lawsuit, a Grace executive had told him, “This case will have the attention of the company from top to bottom.” On the next day, W. R. Grace’s corporate headquarters in New York issued a press release “strongly” denying the “irresponsible and unjustified” allegations in the complaint. The company’s Woburn plant, said the release, did not make chemicals and therefore “could not have caused the water contamination problem.”

  This was not the first time W. R. Grace had been accused of polluting the environment. The corporate empire included chemical and manufacturing plants in two dozen states as well as in Europe, South America, New Zealand, and Japan. Cheeseman himself already represented Grace in another matter, one that bore a striking similarity to Woburn—a Grace chemical factory had been sued by the town of Acton, Massachusetts, for polluting its groundwater. But no one in Acton was claiming that Grace had killed five children and poisoned an entire neighborhood. It was those allegations, and the headlines they had created, that made the Woburn case an especially frightening specter to a company like Grace. Cheeseman understood that he should spare no effort to stop this case in its tracks.

  He was well suited for that task. He specialized in pretrial maneuvering. He had a reputation at his firm for finding clever ways to kill lawsuits in their infancy, with motions of demurrer or summary judgment. He’d already filed a partial summary judgment in the Acton suit. Jury trials and personal injury cases almost never entered his life. Usually he represented one large company that was suing another, or was being sued by the government, in disputes that were complicated but dry and bloodless and almost invariably settled out of court. In his entire career, Cheeseman himself had tried only four small cases to a jury. He did not like jury trial work, and he recognized that he was not particularly good at it.

  He had a vivid memory of watching a jury trial for the first time, fifteen years ago when he was a law student at Harvard. He had sat in the gallery of a Boston courtroom listening to a lawyer ask his client, a young woman, to describe the details of an accident in which a child had been killed. The woman had been holding the child, her sister, in her arms when a bus collided with the car in which she’d been riding. As the woman recalled the event on the witness stand, she broke into sobs. Her lawyer, an older man of obvious experience, stood next to the jury box, one eye on the jurors, while his client wept. When the woman recovered her composure, the lawyer gently asked another question. More weeping followed. Cheeseman saw one of the jurors take a Kleenex out of her pocketbook and dab her eyes. And Cheeseman, too, had felt moved.

  When court recessed for the day, Cheeseman walked into the hallway and stood waiting for an elevator. A few minutes later the lawyer emerged from the courtroom with the young woman and her family. They were in high spirits, talking excitedly among themselves. The lawyer said something to the woman, and Cheeseman saw her laugh.

  He was appalled. At that moment he believed that the entire courtroom performance had been a cynical charade. Later he realized that wasn’t wholly true. The woman had suffered a terrible loss, and perhaps her laughter in the hallway had been simply a release of tension. But the experience had left Cheeseman disdainful of the tactics of personal injury lawyers and leery of juries. “Everyone understands that the deck is stacked,” Cheeseman observed many years later. “Somebody who’s been hurt has the sympathy of the jury. Big companies don’t get that sympathy.”

  Jury trials are the rarest form of business at large corporate law firms, and they were especially rare at Foley, Hoag & Eliot, which employed a hundred lawyers but had only a few experienced trial lawyers. Cheeseman’s firm took great pride in its reputation as an “intellectual” law firm. Most of its recruits came, as Cheeseman did, from Harvard, and most of them had been on the Law Review. “Scholarship has always been a hallmark of the firm’s reputation,” stated a Foley promotional brochure. “Scholarship” sometimes meant long and tediously researched briefs. Among the Boston bar, the firm was famous (“maybe infamous,” Cheeseman admitted) for the length of its briefs.

  Cheeseman had a rigorous, logical cast of mind. As an undergraduate at Harvard College, he’d studied mathematical physics. He knew he was smart, but in his most self-critical moments he saw himself as methodical and dull. His remedy for this perceived flaw was itself methodical. “I work hard to cultivate a little flakiness in myself,” he once confessed. He cultivated various small eccentricities. Over time, he acquired a collection of hats—berets, tams, Greek fisherman caps, fedoras—which he wore to work, along wit
h a bulky sheepskin coat instead of the cashmere overcoat that seemed part of the legal dress code. He wore his suits, bought off the rack, until the crease in the trousers disappeared and new creases laced the back of his suit coat. He let his hair grow so long and shaggy that even his eight-year-old daughter once told him he needed a haircut. He drove to work in a small English sports car, a Triumph, which he raced in Sunday-morning autocrosses in the empty parking lots of malls and supermarkets. He wanted to own a Porsche, and though he had a handsome income, he felt he could not afford one yet. He quelled his desire with a small toy model of a Porsche Carrera, which he kept on a bookshelf in his office. A psychiatrist friend once told him, “You’re the loosest obsessive-compulsive I’ve ever met.” Cheeseman remembered that remark as a compliment.

  At the firm he was well liked. He was not snobbish to young lawyers who had not gone to Harvard, as some partners at the firm were. Office politics did not interest him. He tended to avoid the firm’s parties and he did not hang around after hours to trade stories about clients and adversaries. In an occupation that could consume every waking hour, he set limits on what the firm could demand of him. Some young associates who toiled nights and weekends in the hope of making partner admired Cheeseman for this, although they did not often follow his example.

  Cheeseman quickly learned the basic facts about Grace’s Woburn plant from one of the company’s in-house lawyers. The plant had been built in 1960. It employed about a hundred people in making machinery for the food-packaging industry, for vacuum-wrapping meats—turkeys, hams, hot dogs, and the like—in plastic film, which was also made by Grace at plants in Iowa, Indiana, and Texas. The Woburn plant had once used TCE in the early 1960s, but a search of the records revealed the purchase of only a single 55-gallon drum. Workers had used the solvent for hand-cleaning small metal parts. Some employees, it seemed, might have dumped small amounts of used solvent, no more than a few “teacups” at any one time, into a ditch behind the plant. But this small amount, Cheeseman was told, could not have contaminated the city wells, which were half a mile away from the plant.

  A Grace executive showed Cheeseman a tape of Schlichtmann’s press conference announcing the lawsuit. It began with a reporter standing in front of the Grace plant in Woburn. “Lawyers for the Woburn families,” the reporter said, “allege that this W. R. Grace plant has dumped solvents and chemical wastes that have contaminated two city wells and caused the deaths of five children.”

  The picture faded to an interior shot of a law office. Cheeseman saw a tall, thin young man wearing a dark suit and vest, a red tie, and a gold collar pin. Behind him were shelves of leather-bound law books. “Jan Schlichtmann is one of the lawyers representing the families,” said the voice of the reporter. “Mr. Schlichtmann, what do your clients hope to get out of this lawsuit?”

  Schlichtmann, looking directly into the camera, said, “First of all, we want these companies to pay for the injuries they’ve caused these families. We want them to stop dumping their chemical wastes. And we want them to clean it up.” The evidence, continued Schlichtmann, will show that W. R. Grace’s plant had dumped chemical wastes on the ground for twenty years, ever since the plant had opened.

  The tape ended with the reporter saying that some Woburn residents were already demanding that the city shut down the Grace plant.

  Cheeseman found this fellow Schlichtmann’s performance highly unprofessional. Public comment about a pending case, especially inflammatory comments about evidence, violated the Canons of Professional Ethics. A lawyer risked censure for such behavior. Schlichtmann looked young and untested, thought Cheeseman. Perhaps Schlichtmann believed he could intimidate Grace by inflaming public opinion. Perhaps he simply hoped to grab a quick settlement.

  Back at his office, Cheeseman began making inquiries. None of his colleagues at Foley, Hoag & Eliot had heard of Schlichtmann. In itself, that was not surprising since Cheeseman’s firm rarely descended to the level of personal injury law. In Martindale-Hubble, the national law directory, Cheeseman found that Schlichtmann was thirty-one years old, had gone to Cornell Law School, and had passed the bar exam barely four years ago. “He’s as green as he looks,” Cheeseman told one of his partners.

  Cheeseman hoped to teach this young lawyer a painful lesson about dealing with companies like W. R. Grace. He decided first to remove the case from the state Superior Court to the federal court. W. R. Grace, with headquarters in New York and operations across the entire country, was entitled to federal jurisdiction. And the federal courts, Cheeseman believed, had a generally higher caliber of judges whose tolerance for personal injury cases of questionable merit was correspondingly lower.

  Then Cheeseman wrote a letter advising Schlichtmann and Roisman to withdraw the lawsuit. “If you do not withdraw this action,” Cheeseman warned, “please be informed that we will take appropriate steps to seek a prompt dismissal of the action, and we will seek an award of attorneys’ fees and expenses against you and your associates.”

  Cheeseman never got a response to his letter. Throughout the summer and into the fall, he heard nothing more about the Woburn case. He was feeling circumspectly pleased. He began to think maybe Schlichtmann had abandoned the case. Cheeseman had known that to happen before—a plaintiff’s lawyer hastily files a complaint in order to make the statute of limitations and only later begins to think better of his chances. Or perhaps the letter had scared Schlichtmann off.

  It wasn’t until one morning in October that Cheeseman learned the case hadn’t gone away after all. He received from Schlichtmann a lengthy set of interrogatories, fifty-two pages of written questions to be answered under oath, concerning every aspect of the history and operations of the Woburn plant. Cheeseman was required, as all lawyers are, to answer the interrogatories within thirty days. But Cheeseman had no intention of doing that. Instead, he began preparing his next move, one he’d been thinking about since last spring.

  It was a bold and creative stroke, exactly the sort of thing that had given Cheeseman his reputation for getting rid of difficult lawsuits. Among the many dozen rules of Civil Procedure was a little-known and rarely used provision—Rule 11—that had been conceived half a century ago, in 1938. The rule had been intended to curb frivolous and irresponsible lawsuits, but it was so weakly worded and easy to circumvent that few lawyers ever wasted their time invoking it. Cheeseman had heard, however, that the Senate Judicial Conference was revising the rule to make it much stronger. Among other things, the proposed revisions would lay out harsh punishments—large fines, public reprimands, and even suspension—for lawyers who filed “sham and false” claims. The new Rule 11 had not been enacted yet, but that didn’t trouble Cheeseman. It had given him the idea, and as far as he was concerned, even the weak standard of the old Rule 11 applied to this case.

  “It is certainly true that Rule 11 proceedings are, and should be, rare and serious matters,” wrote Cheeseman in his motion to dismiss the case. And then he proceeded to enumerate his reasons for invoking the rule. Most compelling of all was an article he’d found in the Providence Journal two weeks after the case had been filed. The article quoted Roisman’s research assistant as saying that there was “no firm proof of a connection between the families, the chemicals found in their wells, and the two companies. ‘It’s kind of a common-sense link,’ ” the assistant reportedly said. “ ‘It’s a fairly safe assumption that there is some kind of link.’ ”

  Cheeseman planned to use this statement—it was an admission, pure and simple, that the lawyers for the Woburn families had no grounds for the allegations—as the centerpiece of his Rule 11 motion. He would buttress it by showing that there was nothing in the medical or scientific literature to suggest that TCE or perc could cause leukemia. Furthermore, both the Environmental Protection Agency and the Centers for Disease Control had clearly stated in their reports that “the contaminants found in Wells G and H are not known to cause leukemia.”

  And finally, the EPA had never identified the
Grace plant as a source of contamination. The agency had said that more research was necessary to find those responsible. If the EPA could not implicate Grace, then how could Schlichtmann and Roisman? To Cheeseman, it seemed obvious that his client had been selected because it was a six-billion-dollar corporation whose name was associated with the chemical industry.

  As he worked on the Rule 11 motion, Cheeseman decided to call Neil Jacobs at Hale and Dorr to inform him of his plans. It made sense to Cheeseman that Grace and Beatrice, co-defendants in the case, should work together whenever possible. Last summer, Cheeseman had spoken with Jacobs about removing the lawsuit to federal court. Jacobs had readily agreed to that, and now Cheeseman hoped that Jacobs and Facher would also join the Rule 11 motion. Facher’s name and stature, thought Cheeseman, would lend the motion even greater weight.