Cheeseman and the judge conferred in whispers for several moments. The courtroom, with fifteen or so lawyers watching, was silent except for the murmured exchange at the bench.
Finally the judge cleared his throat and said, “There are a couple of questions Mr. Cheeseman wants answered, and the first one is addressed to Mr. Roisman: When were you first retained with respect to this case?”
At the counsel table, Roisman stood. “Mr. Schlichtmann asked us to get involved around February of 1982.”
Judge Skinner conferred again with Cheeseman, who remained at the judge’s elbow, looking unhappy. The judge asked when Roisman and Schlichtmann had first seen the EPA documents reporting the contamination near the W. R. Grace plant, and Roisman said in June 1982. There was another whispered conference between the judge and Cheeseman.
“The next question …” began the judge, and then he grunted. “I think that’s a rhetorical question, Mr. Cheeseman.”
“I think not, Your Honor,” said Cheeseman.
“You better clarify it for me again.”
Schlichtmann watched the two of them with interest. He thought the judge had lost all enthusiasm for this hearing. Skinner seemed uncomfortable, almost embarrassed, with a proceeding in which he and a lawyer conferred alone, off the record, ex parte, about another lawyer. Schlichtmann felt certain he had won.
After a few more desultory questions, Judge Skinner finally said, “All right. I think that is the end of the catechism, is it not, Mr. Cheeseman? Anything else before we bring this hearing to a close?”
“There is one other matter,” said Schlichtmann. “I believe Mr. Facher has made his phone call to his client.”
Facher had in fact returned after only a few moments outside the courtroom. He had seen everything that had gone on between the judge and Cheeseman. To Schlichtmann, Facher said, “I have no information. They are all out to lunch in Chicago. I have no personal problem with showing you the affidavit. It doesn’t cast any great aspersions on you.”
“Based on that statement,” Schlichtmann said to the judge, “I ask the Court to make a finding that there is no evidence of any impropriety.”
Judge Skinner seemed to consider this for a moment. “Mr. Facher has made a judgment, but I can’t let his judgment be substituted for mine.” Then he added, mostly to himself, “Ordinarily, I would give it great respect.”
Schlichtmann started to speak again, but the judge cut him off abruptly. “Look, you’ve got an issue that’s quietly dying on the vine here. Why do you run the risk of reviving it?”
“I don’t want to be the one dying on the vine, Your Honor.”
“As far as I’m concerned, it will remain a non-issue,” said Skinner, rising to indicate the hearing was over.
After the judge departed, Schlichtmann turned and walked toward Facher, who was putting on his coat. Schlichtmann ignored Cheeseman, who stood a few feet away, busying himself with papers on the counsel table, and extended his hand to Facher. “I want to thank you,” Schlichtmann said. “It was very statesmanlike of you not to join in this ridiculous attack.”
Facher smiled at Schlichtmann in a soft, sleepy manner and accepted the handshake. Schlichtmann had gotten the best of both Cheeseman and the judge, and Facher had found that most entertaining. Schlichtmann’s comment about statesmanship amused him further. Statesmanship had nothing to do with being a trial lawyer. To Schlichtmann he said, “You did a good job. I don’t know if you’re right about this case, but you certainly did a good job.”
Judge Skinner issued his ruling two weeks later. “Rule 11 is a useful tool to restrain frivolous and abusive litigation,” the judge wrote. “Rule 11 may not be used, however, to harass the serious litigant whose claim may depend upon circumstantial evidence and may not be fully developed at the time the complaint is filed.” The EPA reports and the study of the Woburn leukemia cluster by the Centers for Disease Control constituted sufficient grounds for filing a complaint. “Accordingly, defendant’s Rule 11 motion is DENIED.”
Schlichtmann had already celebrated. He knew he’d won the moment the hearing had ended. At Reed & Mulligan that evening, he opened bottles of champagne. He laughed and did parodies of Cheeseman, of the way Cheeseman had walked stiffly up to the judge’s bench, of the wounded look on Cheeseman’s face when the judge said his question was rhetorical. Everyone joined in the celebration, which went on until late that night.
The next morning, Schlichtmann awoke without a thought of the Woburn case. It seemed to lie in a distant future. He still believed that he was merely Roisman’s local counsel. He didn’t realize then how large an investment Cheeseman’s motion had given him in Woburn.
Orphans & Dogs
1
For most of the next year and a half, Schlichtmann let the Woburn case languish in the files. His life was busy, his career on the rise. He and Conway stayed on at Reed & Mulligan for a while. Barry Reed landed a big case—a hotel fire in which a businessman had died—and Schlichtmann jumped on it. He hired the nation’s leading expert on hotel fires and spent twenty-two thousand dollars preparing courtroom exhibits. Then he invited the hotel’s lawyers and insurance agents to a meeting. Reasoning that this case should be worth a lot of money, he spared no cost in arranging the setting for the meeting. He reserved the Grand Ballroom at the Ritz-Carlton and a private dining room for lunch and dinner breaks. At the end of the first day the parties retired to the dining room and continued their discussion over lobster bisque, tomatoes Provençale, grilled rack of lamb, and a grand cru Bordeaux, all paid for by Schlichtmann.
The negotiation went on for three days. Schlichtmann laid out his entire case, assisted by Conway and a young lawyer from Reed & Mulligan named Bill Crowley. Schlichtmann let the hotel’s insurance agents and lawyers look at his exhibits and cross-examine his fire expert. The hotel brought in its own fire expert. The two experts discussed the evidence, agreeing far more often than not. On the third day Schlichtmann walked out of the Ritz with a settlement of two and a quarter million dollars.
He had invented a new way of doing business. The Ritz negotiation had been almost like a trial, but in an atmosphere that was congenial instead of adversarial. True, it had been expensive, but not nearly as expensive as a two-week trial, and much less risky. Schlichtmann felt proud of his newfound method. He saw no reason why the same approach shouldn’t work in every case.
Barry Reed took a large portion of the hotel fire fee, even though he had never appeared at the Ritz negotiation. Schlichtmann split his share, with Conway and Crowley. And when a reporter from The Boston Globe called to ask about the settlement, Reed took the call and all the credit, too.
“You could have at least mentioned my name,” said Schlichtmann.
Soon afterward, Schlichtmann left Reed & Mulligan to start his own firm. Bill Crowley came along with him. And so, of course, did Conway. There had never been any doubt in Conway’s mind that he would go wherever Schlichtmann went. Life would have been unbearably dull without Schlichtmann.
The name of the new firm was Schlichtmann, Conway & Crowley. There was nothing modest about its beginnings. Schlichtmann saw to that. The Ritz negotiation had convinced him that the appearance of success often begets success. The three partners found an office on the second floor of an old three-story brick building, a historic landmark near the waterfront, at the corner of Milk and India streets, two blocks from the federal courthouse. Schlichtmann hired one of Boston’s most fashionable interior decorators. The partners put all their earnings from the hotel fire case into renovating and furnishing the office, uncovering the massive oak beams and rebuilding the ancient brick archways. Schlichtmann ordered a large conference room table, made of bird’s-eye maple and stainless steel, from the man who had designed a similar table for the Blue Room of the White House. Surrounding the table were eight chairs of soft, buttery leather, each like a sofa unto itself. Oak filing cabinets were specially built for the office, along with a library to hold Schlichtmann’s substanti
al collection. He had the decorator install a kitchenette and bathrooms equipped with telephones and a spacious tiled shower. The firm leased the most advanced office computer system available. In keeping with the opulence of the new office, Kathy Boyer arranged for fresh flowers to be delivered daily.
The firm celebrated its opening with a huge party. A crane pulled up outside, stopping traffic on India Street for several hours, in order to hoist a grand piano through the second-floor windows. The first floor of the building was occupied by a venerable old Irish pub named Patten’s Bar & Grill. Schlichtmann rented the pub for the evening and hired the best caterer in town to prepare the food. Waiters in black tie served champagne. One jazz combo played downstairs at the bar while another played upstairs in the office. Reed and Mulligan came to the party, along with a hundred other lawyers and their spouses, among them many insurance company lawyers and agents, Schlichtmann’s past adversaries. Teresa was there, of course, and so was Schlichtmann’s mother and most of the Conway clan. Late that evening, the party still in full swing, Conway ran into Schlichtmann coming out of the men’s room. They smiled at each other. They had a wonderful future before them. “There’s only one thing, Jan,” said Conway.
Schlichtmann looked at his partner.
“Woburn,” said Conway. “Get rid of it. Please.”
Schlichtmann simply laughed.
Some types of personal injury cases are riskier than others. Medical malpractice claims, for instance, are usually much more complicated to prepare than most accident claims. They also tend to require large investments of time and money, and the results are far from certain. Among those malpractice claims that go to trial, the plaintiff can expect to lose, on average, two times out of three. Like most people, plaintiffs’ lawyers don’t like to take chances with their own money. They either settle or drop the vast majority of cases before trial. Furthermore, most successful personal injury firms try to carry large inventories of cases, many of which are small and uncomplicated. Small claims yield small rewards, but they also provide a regular stream of revenue for a firm.
That way of doing business didn’t appeal to Schlichtmann. He didn’t want to spend his career churning through small cases. He had grander visions. He wanted his firm to deal only in those cases that promised big rewards and required big investments. Conway went along with this strategy. He and Schlichtmann agreed that they would accept only ten new cases a year. It would be Conway, cautious Conway, who would serve as the firm’s gatekeeper. He would weigh the questions of liability and damages and decide what cases were worth investing in.
Some of the claims that came to the new firm in its first year were patently frivolous and Conway quickly rejected them. (One prospective client wanted to sue “for bodily damages I have sustained as a result of drinking beer for a period of twenty-five years.”) Conway called such cases “dogs.”
“Orphans,” on the other hand, were cases that looked as if they might have some merit but that for one reason or another had circulated among several law firms, rejected by one and passed on to another. Most of these were medical malpractice cases. In time, Conway’s reject file would contain many orphans, instances of disability and death from cancers, ruptured aneurysms, kidney failures, high fevers, and cardiac events. In most of those instances, Conway judged that doctors had not been responsible for the sad outcomes. They were, so to speak, “acts of God.” Conway was easily given to compassion but not to recklessness. “You measure your success by the cases you don’t take,” he liked to say.
The grand piano had scarcely been lowered from the second-floor window when a classic orphan crossed Conway’s desk and arrested his attention. Two Boston firms and the biggest plaintiff’s firm in New York, Kriendler and Kriendler, had already rejected it. It was, on the face of it, a most puzzling case. A young man had been in an auto accident, had suffered whiplash, and had gone to the hospital for what everyone had believed would be a short stay. Five months later, he left the hospital in a wheelchair, completely crippled, the victim of a massive infection that had eaten away the bones of his hips. More hospitalizations and many operations had ensued. The young man’s medical record had become a Manhattan phone book, a history of 622 days in various hospitals.
To Conway, it seemed amazing that a minor automobile accident could have resulted in such a medical nightmare. He wanted to adopt this orphan. He gave the file to Schlichtmann, who took it home one weekend to read. For the next six months Schlichtmann thought about nothing else. And the Woburn case, ignored by Conway and forgotten by Schlichtmann, became an orphan in its own right.
Schlichtmann began trying to unravel what had happened to the young man. By the time he had his answer, he’d spent two hundred thousand dollars on the case, far more than he’d spent on any other, more than anyone, including even Conway, thought prudent. He found that the young man, whose name was Paul Carney, had been treated with steroids immediately after the accident. This was the accepted treatment for reducing dangerous swelling in injuries such as whiplash. But Carney had received high doses of steroids for three weeks, much longer than recommended. Schlichtmann learned that steroids in massive amounts can destroy bone matrix, particularly in the hips. In Carney’s case, this process was further abetted by an infection that had entered through a catheter. The infection had spread throughout Carney’s entire body, its symptoms—swelling and fever—masked by the steroids.
Schlichtmann left nothing to chance in preparing the case. Twice he organized mock trials, presenting the case to panels of ordinary people who had been hired off the street to act as jurors. In both instances, the mock juries came in with similar verdicts: three million dollars.
Schlichtmann invited the defense lawyers and insurance agents to the Grand Ballroom at the Ritz-Carlton. As it had in the hotel fire case, the negotiation went on for several days. And it worked, after a fashion. The insurance company, which had earlier refused to offer a dime, now offered a million dollars, the limit of its policy. Schlichtmann turned it down.
On the street, rumors about the Carney case spread quickly. Milliondollar settlement offers, like million-dollar verdicts, were not all that common. Lawyers stopped Schlichtmann and asked if he had really rejected a million dollars. Some admired his audacity. Others thought him irresponsible. Almost no one believed the rumor that he had actually risked two hundred thousand dollars on one malpractice case.
The Carney case was a big story among only part of the Boston bar. Corporate lawyers don’t travel in the same circles as personal injury lawyers. William Cheeseman hadn’t heard about the Carney case. He hadn’t laid eyes on Schlichtmann since the Rule 11 hearing, more than a year ago. He was strolling up the sidewalk on Milk Street toward his office one spring afternoon when Schlichtmann, walking as fast as a man can walk without running, nearly ran him down.
Schlichtmann shook hands with Cheeseman. The Rule 11 motion still rankled him, but even so he felt—it seemed odd to him then—a desire for Cheeseman’s respect. They stood for a moment on the sidewalk and talked, a few paces from the door leading up to Schlichtmann’s office.
“I’m going to trial next week,” said Schlichtmann. He told Cheeseman about the Carney case and the million-dollar offer by the insurance company. Cheeseman seemed interested, so Schlichtmann began describing the courtroom exhibits he intended to use.
“I’d like to see these exhibits sometime,” said Cheeseman.
“You want to?” said Schlichtmann. “My office is right here. Come on up.”
The office was in an uproar. It looked like the backstage of a major theatrical production just before curtain time. The exhibits occupied the entire conference room and spilled out into the hallway and the reception room. There were a dozen large, hand-colored illustrations showing the progress of Carney’s disease from normal bone tissue to advanced necrosis. There were poster-sized blowups of the doctors’ entries into Carney’s hospital chart, and graphs documenting Carney’s decline during the three weeks of steroid treatment
. Schlichtmann had even produced a movie—A Day in the Life of Paul Carney. On the conference room table Cheeseman saw anatomical models of hips and prosthetic joints.
Schlichtmann gave Cheeseman a tour, explaining his theory of the case and how he intended to prove it. He noticed that Cheeseman’s interest seemed more than just casual. Schlichtmann thought to himself, He’s thinking about what the Woburn exhibits might look like.
Cheeseman asked how much he had spent on the Carney case. Schlichtmann smiled. “A lot. A couple hundred thousand dollars.”
Cheeseman raised his eyebrows. “The entire office is working on this one case?”
“That’s the way we like to work,” said Schlichtmann.
Cheeseman spent twenty minutes in the office. Neither he nor Schlichtmann mentioned the Woburn case. As he was leaving, Cheeseman said, “I’d like to see this trial. Will you give me a call when it starts?”
“Sure,” said Schlichtmann.
Memories of this tour lingered with Cheeseman. He was amazed that Schlichtmann would risk so much on one case. If he were in Schlichtmann’s shoes, he thought, he wouldn’t be able to sleep at night. He really did want to see the Carney trial. He hoped that Schlichtmann would lose.
Being in trial, Schlichtmann once said, is like being submerged in deep water for weeks at a time. The world above becomes a faint echo. War, scandal, and natural disaster may occur, but none of it seems to matter. The details of the case occupy every waking hour and usually intrude into dreams as well. Existence becomes spartan. When you finally come to the surface to breathe normally again, the world seems altered in fundamental ways. Win or lose, you set about rediscovering pleasures only dimly remembered. Colors seem brighter, food tastes better, the weather is of compelling interest.
The Carney trial, six months in preparation, lasted fifteen days. Conway and Kathy Boyer bought sandwiches for Schlichtmann and begged him to eat, but he rarely did. By the end of the trial he had lost fifteen pounds.
A Civil Action Page 14
