One morning that fall, Conway stood at the office window, looking down on Milk Street as Schlichtmann departed for another deposition. He watched as Schlichtmann hurried across the street, directly in the path of a small van. Conway saw the van lurch to a halt and heard the driver blaring his horn, but Schlichtmann did not even seem to notice.
“He never looks,” Conway murmured to Kathy Boyer. What would happen if Schlichtmann was injured? Or fell ill? Conway wasn’t a trial lawyer. He knew that neither he nor Crowley could take Schlichtmann’s place.
Conway also knew that nothing he said would do much good, but he had to try. “You’re the only one, Jan, who has control of the facts in this case.”
“My brain,” Schlichtmann said mournfully. “Facher would crush me like a bug if he could.”
Conway was trying to get him to pay attention to traffic, but Schlichtmann couldn’t even pay attention to his plea. “One high fever and it’s all gone,” said Conway, and he smiled.
It was September, the ninth month of discovery. The trial was scheduled to begin on February 18, five months away. When Schlichtmann’s fears about money and his own flagging stamina threatened to overwhelm him, he told himself that if he could just survive discovery and get the case in front of a jury, then everything would be all right. Getting to a jury had always meant victory before.
He had to endure only five more months. Provided, of course, that there were no delays. And just now, the prospect of delay appeared imminent. He had to let Facher and Cheeseman begin deposing his expert witnesses if he wanted to keep the trial date. But the medical experts had not finished all their work yet. Just as important, Schlichtmann hadn’t found time to prepare them properly for cross-examination. Most were not experienced at giving their opinions under oath. Schlichtmann had to convince them that the rules of evidence were different from the rules of science, that the witness stand was no place to express doubt or uncertainty. They would have to understand that the other side would try to make them say things at their depositions that could be used against them later in the courtroom.
There hadn’t been time for any of that yet. The experts were not ready to be deposed, but Schlichtmann did not want to be the one to ask for a delay. He knew that Facher and Cheeseman had no interest in keeping this trial date. They would try to postpone the day of reckoning as long as they could, hoping that he would run out of money. Schlichtmann feared that one delay might lead to endless delay. In his darkest hours of insomnia, he feared that any delay might lead to no trial at all.
So he agreed to let Facher and Cheeseman take the depositions of three experts. Under the terms of this agreement, as Schlichtmann understood it, these “preliminary” depositions would be limited strictly to factual matters—the types of medical tests the doctors had performed on the families and the results of those tests. The doctors would not, according to the agreement, be asked to state their conclusions and opinions. That would come in the second round of depositions, after the experts had completed all their work.
This agreement was, in retrospect, a mistake caused by haste and a burdened mind. Facher and Cheeseman were no more likely to stay within the terms of the agreement than Schlichtmann would have been in their place. Schlichtmann was uneasy and skittish, and this first mistake led him to a series of further mistakes, mistakes of intemperance.
“I thought we were going to restrict the deposition to the doctor’s tests,” Schlichtmann said to Facher’s associate, Don Frederico, five minutes into the first of those preliminary depositions. A few minutes later, Schlichtmann interrupted again. “Correct me if I’m wrong—the sole purpose of this deposition is for you to find out what testing was done so you can determine your own testing program. I know there’s a thousand questions you want to ask. You’ll have an opportunity to ask a thousand, two thousand questions, but not today. Today’s for a very limited purpose.”
“Mr. Schlichtmann,” replied Frederico, “I’m not sure we have time for all your speeches.”
“We don’t have time for you to ask questions that you know are beyond the scope of today’s deposition,” said Schlichtmann hotly.
“We reserve our right to object—”
“You reserve your right to whatever. Don’t try to pervert this deposition into something it’s not. The purpose is to go over the goddamn tests and reports so you can design whatever testing program you want.”
“Please lower your voice,” said Frederico. “Are you instructing him not to answer?”
“Don’t pull that bullshit with me!”
“There’s no need to shout or make accusations,” said one of Cheeseman’s partners.
“You want to make it look like I’m obstructing this deposition,” said Schlichtmann. “You want to push the trial date off. This little game—’Look, Judge, Mr. Schlichtmann is a son of a bitch and not cooperating and we need more time’—I won’t play that game. I am cooperating. I’ve gone out of my way to help you. I’m going to make you abide by these agreements. It’s good for the soul.”
The lawyers managed to get through the first deposition, although they left behind two hundred and fifty pages of transcript cluttered with long arguments. The second deposition, of Schlichtmann’s immunologist Alan Levin, was worse. “I’m here under false pretenses,” Schlichtmann shouted at one point. “I’ve been abused!” A dozen times, he threatened to walk out. Then, instead, he began conferring with Levin before allowing him to answer many of the questions. Coaching a witness in the middle of a deposition is a serious violation, but Schlichtmann didn’t care. These depositions, he contended time and again, were not “regular” depositions. “Before you answer that question, I want to talk to you,” he told Levin. “Very important point. Come on.” He got up and started to leave the conference room, pulling Levin along with him.
“Do you have a problem with the clarity of the question?” asked Cheeseman’s partner, a lawyer named Marc Temin.
“I have a problem with the clarity of the question,” said Schlichtmann, on his way to the hall.
“Don’t leave the room, Mr. Schlichtmann, while someone is speaking!”
“I’m going to leave the room anyway. This isn’t a regular deposition. You’re going to get a second shot.”
“I object to your doing so.”
“I join in the objection,” said Frederico.
“You all join together and do what you wish,” said Schlichtmann.
When Schlichtmann returned from the hallway, Temin said, “Now, Doctor, did you confer with Mr. Schlichtmann again?”
“Oh, get out of here,” said Schlichtmann. “Next time you make a comment like that, we’re going home. Okay? One more comment like that on the record and we’re getting out of here.”
“The record is going to reflect what is taking place.”
“No, it is not!” shouted Schlichtmann.
“Mr. Schlichtmann, your threats, warnings, and raised voice are totally inappropriate.”
“No they’re not! I will not be subjected to insulting behavior by you people.”
“There was a question pending—”
“There’s no question pending!”
“I’d like to complete a sentence without being interrupted. Mr. Schlichtmann conferred with the witness between the question and the witness’s answer. I think he has no right to do that.”
“The conference had nothing to do with his answer,” said Schlichtmann. “If you insinuate it again, I will assume you’re bad, ill-mannered, and not worthy of conducting this deposition.”
“You can assume what you like about my manners.”
“Continue with your question,” said Schlichtmann.
“The record will reflect—”
“The record will reflect everything we’ve said. Continue your examination or we’re going right now. This was an agreement with special limitations, done as a convenience for you. Now you pervert it into something else. I resent it. I’m sorry Judge Skinner wasn’t a party to the agreement. He won’t know who’s
lying and who’s telling the truth. I’m going to pay the penalty for trusting you.”
Facher had not attended the first deposition, but he did come to the second one at Frederico’s urgent request. He sat at the far end of the table, looking on with pursed lips and narrowed eyes, not saying a word. After an hour he departed silently.
Judge Skinner met with the lawyers in his chambers one week after the first depositions had ended. Just before the conference began, Facher handed Schlichtmann several new motions. Schlichtmann glanced quickly at them. Then he froze. One of Facher’s motions asked the judge to censure him. The motion accused him of “undue interference with the orderly taking of depositions, unwarranted disruptions, rude and threatening statements … and conferring with the witness while under examination.” Attached to the motion were forty pages taken from the deposition transcripts, with his utterances, oaths and all, boldly underlined. Schlichtmann felt a stab of panic. Glancing at this material was like awakening the morning after to the faint, hazy memory of a terrible indiscretion.
Judge Skinner took the bench and looked at the stack of fresh motions before him. “A whole lot of motions came in today,” he muttered with disgust. “It looks like a hell of a mass of stuff.”
“There are some discovery things,” said Schlichtmann warily.
“I will not deal with it,” said the judge. “I’ll send that down to a magistrate.”
Schlichtmann groaned inwardly at the thought of the magistrate. But even that seemed better than facing the judge’s wrath now.
Facher spoke up. He wanted the judge to deal with these motions immediately. “We thought the last time you said, ‘Bring these discovery things back to me and I will be a nanny in the case.’ ”
“I now find myself up to my ears,” said the judge. “Trials stacked up back to back. I don’t think I can perform the nanny function. I’m sorry you need it,” he added.
“So am I,” said Schlichtmann quickly.
“I am, too,” agreed Facher. “But I think we are getting worse and worse. The discovery is getting off the track. We have some conduct that I think we ought to deal with.”
Judge Skinner sighed. “I’ll send it down to the magistrate with orders to put it at the top of his civil priorities. I don’t want to change the trial date.”
“Neither do we,” said Schlichtmann.
“I want to try this case in February,” continued the judge. “I don’t think it is going to get any better with age.”
Schlichtmann picked up his coat and walked out of the courtroom, down the long corridor to a bank of elevators. He pushed the button and waited. It was five o’clock. Government employees were leaving work, and the elevators in the federal building, old and slow, were long in coming. A minute passed. Schlichtmann began to wonder why Facher had not appeared in the hallway. Was he still with the judge? Another minute. Schlichtmann paced in agitation. With each passing second he became more certain that Facher was showing Judge Skinner the motion, hoping to anger the judge. Finally an elevator door opened and Schlichtmann, taking one last glance down the corridor, stepped in. At that moment he saw Facher emerge from the courtroom.
Back at the office, Schlichtmann told Conway what he had seen. He was certain that Facher had stayed behind to speak privately with the judge, to convince him to look at the motion for censure. “Facher is trying to poison the judge against me,” said Schlichtmann.
Conway doubted this was true. An ex parte conference between a lawyer and a judge, in the absence of the opposing lawyer, was a clear violation of the disciplinary rules. Perhaps Facher had tried to talk with the judge privately, but Conway did not think that Judge Skinner would countenance such an act. “You’re imagining things,” he told Schlichtmann.
Schlichtmann got a phone call early the next morning. It was from Judge Skinner’s clerk. “The judge wants to see you in chambers at three o’clock. I’ve never seen him this angry before.”
“My God,” said Schlichtmann. “I thought he was going to send all these motions down to the magistrate.”
“He’s read the motions,” said the clerk. “He’s threatening to do things to you that I haven’t heard him say in fifteen years on the bench.”
“My God,” said Schlichtmann again. “What’s he going to do?”
“I don’t know, but whatever it is, it’s not going to be good.”
Schlichtmann imagined the worst. At the very least, the judge would censure him and order him to pay a big fine. But Skinner could do much worse. It was within the judge’s power to remove him from the case, and then to send the matter to the Board of Bar Overseers with the recommendation that his license to practice law be suspended.
Schlichtmann spent the morning pacing the office, cursing and wailing. By noon he had convinced himself that the judge would throw him off the case. His name would be blackened and his work wasted. He resolved that he would not go without a fight. “There’ll be blood on the floor,” he announced to Conway. An hour before the hearing he rushed out of the office and went home. Tears sprang to his eyes as he changed into his favorite suit, a charcoal-gray pinstripe that he wore only on the most important occasions. He thought of it as his lucky suit. It was the one he had worn for his closing argument in the Carney case. It was, he’d often said, like a “suit of armor,” which protected him from “bad karma.”
Judge Skinner’s chambers consisted of a single large and gloomy room among a warren of other smaller rooms and dark hallways that adjoined the courtroom’s vaulted expanse. The judge and his staff of law clerks spent their time in a suite of more commodious offices across the corridor. As a consequence, the judge’s chambers had a dusty, uninhabited feel. A single grimy window let in a shaft of sunlight from the canyon of tall buildings along Milk Street. A pan of water, crusted with a white calcified residue, sat on top of a radiator. The judge’s contribution to the decor consisted of two framed faded photographs of sailboats, which hung on the government-green walls. Dominating the room was a long wooden table, surrounded by eight ancient oak chairs, padded with horsehair, upholstered in leather.
Schlichtmann arrived at the judge’s chambers with an entourage from the office—Conway, Crowley, Kathy Boyer, Peggy Vecchione, and several others—who came along to lend moral support. Facher was already seated in the first chair on the right side of the table, immediately adjacent to the judge’s chair at the head of the table. He had come with an entourage, too—Jacobs, Frederico, and another associate—who occupied the remaining chairs on that same side of the table. Across from them sat Cheeseman and his partner Marc Temin and two other colleagues. Schlichtmann and his retinue were the last to enter the room. Schlichtmann took the chair at the far end of the long table. Conway, Crowley, and the others gathered around him on folding chairs. Facher, who seemed in high good humor, said something to Jacobs, who smiled. Facher chuckled. Schlichtmann sat in silence.
Judge Skinner appeared at the door, looking pale and angry. He halted abruptly and glared at the gathering of lawyers, his stooped frame bent at the waist. He waved his arm in an impatient gesture. “Clear it out,” he said. “One lawyer for each side.”
Facher and Schlichtmann remained seated as the others stood to leave. Kathy Boyer bent down to whisper reassurance in Schlichtmann’s ear before she left. Cheeseman and his partners stood and consulted in low voices for a few seconds. Then Temin, who had attended the preliminary depositions, took a chair beside Facher.
The door closed. Judge Skinner looked down the length of the table at Schlichtmann. “I’m going to lower the boom on you, Mr. Schlichtmann.”
Schlichtmann cleared his throat. “Judge, if this is going to be a hanging, I want the court stenographer here to record it.”
“You don’t want a court reporter for this,” murmured Facher.
“I will not tolerate behavior of this sort,” said the judge. “I’ve read things in these depositions—outrageous things—that I’ve never read before, and I’ve been here quite a while. Swearing on t
he record, instructing witnesses not to answer, counseling witnesses on their answers …”
“Judge,” said Schlichtmann, “do you know what this is all about? I’d like to explain what—”
“I know exactly what this is about, Mr. Schlichtmann. These are depositions.”
“That’s not exactly right, Your Honor. These are not regular depositions.” Schlichtmann, alone at the far end of the table, felt at a disadvantage. He wanted to move up closer to the judge. He said, “Your Honor, can I come up there and sit next to you?”
Skinner looked momentarily surprised. “Yes, of course.”
Schlichtmann stood. He heard a loud rip. He looked down and saw that the lining of his suit had caught on a brass tack in the upholstery of the chair. “My God,” he said softly, “that’s not a good sign.” When he looked up, he saw the barest hint of amusement cross the judge’s lips. It passed in an instant and Skinner’s expression turned stony again.
Schlichtmann moved to the empty chair beside the judge and tried to explain the circumstances of the depositions. He showed the judge the page in the transcript where he’d said, “I’m sorry Judge Skinner wasn’t party to the agreement.”
But the judge was not mollified. “There is no excuse, no excuse whatever, for this sort of conduct, no matter what sort of agreement you had. Swearing like that in a deposition.”
“I was wrong to do that,” admitted Schlichtmann, doing his best to appear contrite. But he could not stop himself from adding, “But I had a reason to swear.”
“I warn you, Mr. Schlichtmann, I will deal with this in a way that will make headlines in American Lawyer if it happens again.”
Schlichtmann nodded, his head bowed, again contrite.
“You are to say nothing—nothing!—in these depositions except to object to the form of the question. Do you understand that?”
Facher spoke again, for only the second time. “Your Honor, I don’t see how we can possibly continue with discovery in this way. Mr. Schlichtmann wouldn’t even get on the elevator with me as we were coming up here.”
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