A Civil Action

by Jonathan Harr

  Over the phone, Jacobs sounded intrigued by Rule 11. He told Cheeseman he would discuss the idea with Facher and call him back.

  3

  Not all of the leukemia victims in Woburn were children. There was, for instance, Roland Gamache. He lived with his wife, Kathryn, and their two young children in the Pine Street neighborhood, one house away from the Zonas, a few blocks from Anne Anderson. In the summer of 1980, in his thirty-fifth year, Roland had gotten a small cut on his ankle while water-skiing at his summer home in New Hampshire. The wound bled for several hours. It was an annoyance, but it did not seem serious. A week later, back home in Woburn, he went to the dentist to have his teeth cleaned. The next morning he awoke and found blood in his mouth and on his pillow. After many tests at the New England Medical Center, doctors confirmed a diagnosis of chronic myelogenous leukemia.

  The Gamaches, of course, had read in the newspapers about the east Woburn leukemia cluster. They knew that one of the Zona boys had died of leukemia. They also knew Patrick Toomey—he was an altar boy at their church. And their daughter, Amy, was in the same class at school as Kevin Kane. After Roland’s diagnosis, Kathryn asked his doctor if he could have gotten leukemia from the Woburn water. The doctor said she didn’t know. No one knew what caused leukemia.

  In the two years since his diagnosis, Roland had felt fine. He was not on chemotherapy, and at times it was hard for him to believe that he had a fatal illness. His disease, however, was grave. In reply to Roland’s blunt question, his doctor told him he could probably expect to live only five to eight more years. Roland buried himself in work at the family-owned business, Severance Trucking, which was prospering. The firm now had fifty vehicles and eighty employees. He hoped to live long enough to see his two children graduate from high school and go on to college.

  The early meetings at Trinity Episcopal Church had occurred before Roland’s diagnosis. He knew nothing about the plans for a lawsuit until his neighbor, Joan Zona, knocked on his door one evening in April 1982, a month before Schlichtmann would file the complaint. She asked Roland if he would join the other families in the case. The lawyers, she told him, wanted to enlist as many Woburn leukemia victims as they could find. Roland said he would think about it. He and Kathryn talked it over, and they decided that if the lawsuit would stop big companies from polluting the environment, they should support it. Moreover, they had learned that TCE can cause skin rashes, and both their children had experienced chronic rashes during the years the wells had been opened. Roland didn’t want his children exposed to any more toxic chemicals, and that seemed like the best reason to join the lawsuit.

  Roland and Kathryn went in to Boston to meet with Schlichtmann. They spent an entire day answering questions about themselves, signed all the necessary papers, and after that they gave the lawsuit little thought.

  Some months later, in the fall of 1982, Roland was making plans to take his eight-year-old son and two other boys to a Bruins hockey game. He had two season tickets to the Bruins, and he needed two additional tickets for the outing. As it happened, the Riley tannery had a pair of season tickets adjacent to his own. Roland decided to call on Jack Riley and propose a trade—two Celtics basketball tickets for the hockey tickets. He had never met Riley before, and he did not realize that he and Riley were now antagonists at law.

  When Roland phoned the tannery that afternoon, a secretary told him that Riley was out but she expected him back shortly, and she offered to take a message.

  Riley saw the message from Roland Gamache on his desk when he returned from lunch. He recognized the name immediately—Gamache was one of the plaintiffs in the lawsuit. He found it incredible that Gamache would call him about hockey tickets when he was suing him. “Tell him to come over,” Riley said to his secretary. “I want to talk with him.”

  Gamache arrived at the tannery late that afternoon. He extended his hand to Riley and smiled pleasantly at him. He explained the trade he wanted to make.

  “I’m not a basketball fan,” said Riley coldly.

  Gamache, taken aback by Riley’s demeanor, began to rise from his chair. “Well,” he began, “in that case …”

  “I’m not a fan,” continued Riley, “but I’m sure somebody here is. Tell me this: Why are you asking me to trade tickets when you’re suing me?”

  “Suing you?” said Gamache.

  “Yeah.” Riley looked intently at Gamache. “Don’t you have leukemia?”

  “Yes,” said Gamache, surprised that Riley would know.

  “Well, what are you suing me for?”

  “I don’t know what you’re talking about.”

  “You’re one of the plaintiffs who is suing the John J. Riley Company, division of Beatrice Foods.”

  Gamache was shocked. For a moment, he could think of nothing to say. He shifted uncomfortably in the chair. “Look,” he said to Riley, “I’m sorry, but maybe I should leave. I didn’t realize your tannery was part of the lawsuit. The lawyers were looking for people to join the case. All we want to do is stop the big chemical companies from dumping.”

  “Look, Roland, I was born and brought up in this town,” said Riley. “I’ve been chairman of the school committee, on the planning board, on the board of a local bank. That goddamn land is my life, my blood, because that’s where I get my water. If you think I’m dumping toxic chemicals there, you’re crazy. You dump more when you change the oil in your car than I’ve dumped in a whole lifetime. I never dumped anything, and neither did Beatrice Foods. To accuse me and my company of giving people leukemia—I don’t like it one goddamn bit.”

  Gamache was shaken by this outburst. Once again, he got up to leave, but Riley had not stopped talking. He was telling Gamache, his tone calmer now, that he had a case of leukemia in his own family, his sister’s boy who lived in Rhode Island. “And I’m not being fresh, but he never drank a drop of Woburn water. I’m well aware of the emotional problems caused by this sort of thing.”

  “My biggest fear,” replied Gamache, “is that the city is going to reopen those wells. I never want my children exposed to that water again. That’s the reason I joined the lawsuit.”

  “Those goddamn wells should never have been used in the first place,” said Riley. “That’s what Denny Maher, the guy who drilled them for the city, told me. The water’s only good for industrial purposes. I run a good clean operation, which is the reason I’m the only tannery left in the city.”

  Then Riley handed the hockey tickets to Gamache. “You take these tickets. Someday I’ll call you for the Celtics tickets.”

  After Gamache departed, Riley called Neil Jacobs to tell him about the incident. “The guy didn’t even know who he’s suing,” said Riley. “He said he did it because the lawyer got him into it.”

  To Jacobs, this sounded like evidence that Schlichtmann had actively solicited people to join the lawsuit. Jacobs wondered if a charge of barratry—“the groundless stirring up of lawsuits”—could be made against Schlichtmann. The crime of barratry had an archaic ring and it was rarely invoked nowadays, although early in the century it had been used frequently against personal injury lawyers, then a new breed widely despised by the established bar. All the same, Jacobs thought that Gamache’s own words, as reported by Riley, seemed like an apt description of barratry.

  Jacobs mentioned this to Facher, but Facher dismissed it with a wave of his hand. Jacobs also told Facher about Cheeseman’s plan to file a Rule 11 motion. Facher dismissed that gambit, too. It had little chance of success, he told Jacobs. “I’m a great believer in doing things once,” Facher liked to say. “If you’re going to knock a guy down, do it so he can’t get up again.”

  Jacobs called Cheeseman to tell him that Facher had decided not to participate in the Rule 11 motion. But there was another matter, continued Jacobs, that Cheeseman might find worth pursuing. Jacobs described the meeting between Riley and Roland Gamache. As long as Cheeseman was thinking about Rule 11, said Jacobs, he might also consider a charge of barratry.


  Cheeseman liked the idea. He was disappointed that Facher would not join the Rule 11 motion, but he himself intended to use every weapon he could find against Schlichtmann. And barratry seemed to fit in perfectly with the Rule 11 charge of filing a groundless lawsuit.

  Cheeseman added a new paragraph, under the heading “Barratry,” to his Rule 11 motion. “We have highly specific and direct evidence to support this charge,” he wrote, “but at this time, it is based on a privileged communication from counsel for W. R. Grace’s co-defendant.” Since the information was, in theory, protected by the attorney-client privilege between Jacobs and Riley, Cheeseman could not reveal it to Schlichtmann. To make the charge stick, however, he would have to reveal it to the District Court judge. “If the Court will entertain an in camera affidavit regarding the communication,” wrote Cheeseman, “W. R. Grace will submit it for examination by the Court.”

  Along with the out-of-court statements to the press (“the opening day publicity effort,” Cheeseman called it in his brief), Schlichtmann and Roisman had filed a groundless lawsuit and engaged in solicitation of clients, all violations of the Canons of Professional Ethics. Such behavior should anger any judge, thought Cheeseman. The Board of Bar Overseers might even decide to conduct disciplinary hearings. Schlichtmann could be publicly chastised and fined for his actions.

  4

  When Cheeseman removed the Woburn case from state court to the U.S. District Court, the file went to the office of the civil clerk on the fourteenth floor of the John W. McCormack federal building in downtown Boston. The Woburn case was one of 4,811 civil actions filed in the U.S. District Court in Boston that year. The in-take clerk assigned each new case to one of the court’s nine trial judges by means of a lottery, a system devised to prevent lawyers from shopping for a judge they believed sympathetic to them or their case.

  For the Woburn case, the clerk took a small sealed manila envelope containing the name of one of the nine judges from the top of the tort category. He ripped it open and shook out a slip of paper with the name “Skinner, W. J.” typed on it.

  At that time Judge Walter Jay Skinner had a backlog of more than five hundred cases. Each month, the lottery piled twenty to thirty new cases on top of that backlog. The vast majority of these cases would settle before trial, but they usually settled only after Judge Skinner had met with the lawyers in a pretrial conference and threatened an early trial date. The judge worked long hours to reduce his backlog. He was another graduate of Harvard Law School, fifty-six years old, his hair turning white, his blue eyes pale and watery behind horn-rimmed glasses. In his chambers he was a man of great rectitude and decorum. He referred to his wife as “Mrs. Skinner,” and when a law clerk once called her “Sylvia,” he gave the clerk a withering stare. Among the Boston trial bar, he was known as a hardworking and fair jurist, but one who could also be short-tempered and curt. “Pull up your socks and try the case,” he’d warn lawyers. “I’m not going to hold up this trial while your minions labor in some library.” He had once sentenced two lawyers to a seminar on trial practice for filing poorly researched and groundless motions. He would slap his hand with a resounding thwack on his bench and say in a menacing voice, “Now, that’s the end of it! Life is short.”

  He was an avid tennis player, and when time permitted he liked to walk up the fifteen flights of stairs to his office for the cardiovascular benefit. He might have had a tall, imperious bearing were it not for a singular deformity—he had a humped back. The year he graduated from Harvard College, in 1948, he had his spine fused because of a painful disk abnormality. Ever since, he’d walked with his knees bent, his back bowed deeply forward at the waist, his head craned upward to see where he was going, like a man carrying a heavy but invisible load.

  He was too busy to keep apprised of each new case assigned to him, but the Woburn case was a different matter altogether. He’d read the newspaper accounts of the Woburn leukemia cluster, he’d read about Schlichtmann filing the case, and he’d even seen Schlichtmann on the evening news. He thought Schlichtmann had skirted the bounds of legal ethics with his out-of-court statements, but that, the judge believed, was a matter for the Board of Bar Overseers to consider. He remembered Schlichtmann—tall, angular, earnest—from an encounter three years ago in his courtroom. He had rather liked Schlichtmann then. Certainly he had approved of Schlichtmann’s case. Schlichtmann had represented the Clamshell Alliance, a group that wanted to protest the delivery of a nuclear reactor core to the Seabrook power plant. The protesters had planned to stage a march through the town of Salisbury; they’d gone to the board of selectmen to request a parade permit. Such permits had been routinely granted to other groups—veterans and Columbus Day marchers—but the chief of police had denied the Clamshell’s request. Skinner recalled that he had ruled swiftly in favor of Schlichtmann’s clients and soundly reprimanded the police chief for violating the protesters’ constitutional rights. Then Schlichtmann had demanded that the town of Salisbury pay his fee.

  Judge Skinner had balked at this. “I think your clients ought to take this ruling and run,” he’d told Schlichtmann.

  “That’s what I’m afraid of, Your Honor, and I’ll be left holding the bag,” Schlichtmann had replied.

  Skinner had smiled. “What’s your fee?”

  “Sixty dollars an hour.”

  Skinner looked at the town counsel. “I have just one question for you. Is Mr. Schlichtmann worth sixty dollars an hour?”

  “I guess so,” the lawyer for the town had replied.

  “Then pay him,” Skinner had ordered.

  Judge Skinner read Cheeseman’s Rule 11 motion with great interest when it arrived in his chambers in mid-November. In his nine years on the federal bench, no lawyer had ever brought a Rule 11 motion in his courtroom, nor did he know of any other judge in the First Circuit who had heard such a motion. Skinner felt that there were a lot of worthless cases—“junk,” he once called them—clogging the federal docket and contributing to his own immense caseload. He knew about the proposed revisions to the rule, and he thought them an excellent idea. In his opinion, lawyers should be encouraged to use Rule 11 much more often.

  The rule was unusual in that it seemed to require the lawyer who had filed the complaint to take the witness stand and undergo cross-examination by his accuser. Such an occurrence was, like a Rule 11 hearing itself, exceedingly rare. A lawyer’s job is to argue his client’s cause, not to act as a witness whose very testimony could, perhaps, result in his client’s case being stricken. But Skinner believed the rule called for Schlichtmann to take the witness stand and answer Cheeseman’s questions. That, he decided, was how he intended to conduct this hearing.

  Accompanying the Rule 11 motion was a lengthy memorandum from Cheeseman. In Skinner’s experience, Foley, Hoag & Eliot always filed long briefs. It was a hallmark of the firm, and it had irked Skinner before. He was busy with other cases, and he did not read Cheeseman’s memorandum thoroughly. He failed to notice on page nine the single paragraph entitled “Barratry.”

  The judge asked his clerk to schedule a hearing on the Rule 11 motion. The clerk found an opening in Skinner’s busy trial calendar on Thursday, January 6, at two-fifteen in the afternoon. The clerk notified Cheeseman and Schlichtmann to appear in the judge’s court at that time, prepared for an evidentiary hearing with oral argument and witnesses.

  5

  Schlichtmann telephoned Cheeseman the morning he received the Rule 11 motion. It was their first conversation. “These charges are ridiculous and you know it,” he told Cheeseman. “This thing about barratry, it’s outrageous for you to attack me personally.”

  “No more outrageous than the allegations you’ve made against my client,” said Cheeseman.

  “I want you to drop these charges so we can deal with the issues in this case,” said Schlichtmann.

  “Dismiss the lawsuit and I’ll drop the charges.”

  “You know I can’t do that,” said Schlichtmann.

  “Then m
y client intends to bring whatever charges it thinks are appropriate.”

  The cool, deliberate tone of Cheeseman’s voice infuriated Schlichtmann. “Listen, you bastard, drop this thing now.”

  “No,” said Cheeseman.

  Schlichtmann slammed the phone down. He was breathing hard, his face flushed, so angry that his hands shook. Conway had never seen him in such a state. “This guy is an asshole,” Schlichtmann shouted. “If the judge believes him, I could be charged with unprofessional conduct. I could be disbarred.”

  Roisman flew up from Washington to discuss strategy for the hearing. Judge Skinner had made it clear in his order that a Rule 11 hearing would require Roisman or Schlichtmann, or perhaps both, to take the witness stand and be cross-examined by Cheeseman. Roisman believed they had no choice but to comply with the judge. Schlichtmann said he would refuse.

  “What if the judge makes you?” asked Conway.

  “I won’t go,” said Schlichtmann. “It’s wrong. I’m an advocate for my clients. He can’t make me testify against them.”

  “He’ll cite you for contempt,” said Conway.

  “I don’t care. I won’t go on the witness stand.”

  “Jan, he could throw you in jail,” said Conway. “You know what the Charles Street jail is like?” Conway imagined Schlichtmann, in his polished Bally shoes, his red Hermès tie, his thousand-dollar suit, sitting in a Charles Street holding pen surrounded by drunks, thieves, and drug addicts. “You better bring your toothbrush on January sixth,” Conway said.

  It was Conway who came up with the idea of turning the barratry charge against Cheeseman. “It’s based on an in camera affidavit, a secret charge. The judge isn’t going to like it. I think he’ll be outraged by it. What if you make that the issue? Maybe it’ll get him angry at Cheeseman.”