A Civil Action

by Jonathan Harr

  This was true. When Schlichtmann arrived at the courthouse that afternoon, he and Conway and the others had encountered Facher and his team at the elevators. An elevator door had opened, and Facher had gotten on. Conway had stepped forward as if to board the elevator too, but Schlichtmann had grabbed him by the arm and pulled him back. They’d stood for a moment, a frozen tableau, facing each other, Schlichtmann glaring at Facher. And then the elevator door had closed.

  The judge cast a baleful eye on Schlichtmann. “Mr. Schlichtmann, let’s have no more of this. You’ve got to get along with each other.”

  Schlichtmann knew now that the judge had done all he was going to do. “You’re absolutely right, Your Honor,” Schlichtmann said, nodding vigorously in agreement. “I think Mr. Facher and Mr. Temin and I should try to resolve this. Perhaps Your Honor could give us a few minutes to talk about it between ourselves?”

  The judge considered this. “I think that’s a good idea,” he said finally. He gave Schlichtmann one last stern gaze of warning and then rose from his chair and left the room.

  The worst had not happened. Schlichtmann felt that he had narrowly escaped disaster, but his sense of relief was mingled with defiance. He looked at Facher and said, “You’re not going to knock me out of this case. We’re going to trial in February. Your client’s property is soaked with solvents.” To Temin, who had not said a word throughout the entire hearing, Schlichtmann said, “And your client is going to be indicted by the grand jury. If you’re hoping that I’m going to run out of money, you’re wrong. We’ve settled with Unifirst.”

  In a soft voice, almost as if he were speaking to himself, Facher said, “I suspected something like that was happening.”

  “I’ve got enough to go the distance, and I’m going to get a jury in February,” continued Schlichtmann. “We better start trying to work together, because sooner or later we’re going to have to sit down and talk about whether we want to settle this thing.”

  4

  Facher took to calling the meeting in Judge Skinner’s chambers the Woodshed Conference. Whenever he felt that Schlichtmann had transgressed again, Facher mentioned that day to the judge. “I don’t have to remind Your Honor of that little meeting back in the Woodshed,” Facher would say.

  Facher wondered how much money Schlichtmann had gotten from Unifirst. He could have asked, but he doubted that Schlichtmann would have told him. He had other ways of finding out. On the whole, he viewed the Unifirst settlement as an encouraging sign—it meant that Schlichtmann really was willing to settle rather than go to trial. And it seemed to Facher that now, after being taken to the Woodshed, Schlichtmann might welcome the opportunity to settle the case against Beatrice. As for Cheeseman, he would have to look out for himself and his own client. Facher might cooperate with him from time to time, when it suited both their aims, but he owed Cheeseman nothing.

  It took Facher one phone call to find out on good authority that Schlichtmann had gotten a million dollars from Unifirst. This, too, seemed propitious. Facher liked to boast that he had never paid more than a million dollars to settle a case, but in this instance he thought it might be worth a million dollars to get Beatrice out of this case. He called Schlichtmann one evening, a few days after the Woodshed Conference. “You got your money from Unifirst?” Facher said.

  “Yes,” said Schlichtmann.

  “You want some more?”

  Schlichtmann laughed.

  “Come on over. I’ll give you some.”

  Schlichtmann suggested that they arrange a meeting at a neutral place, the Ritz-Carlton, for example, with what he called the “decision-makers”—Beatrice executives and the corporation’s insurance agents.

  Facher brushed this aside. “That’s too complicated. I do it the old-fashioned way. Come over to my office and let’s talk.”

  Facher met Schlichtmann in Hale and Dorr’s opulent reception room on the twenty-fifth floor. It was after seven o’clock and the offices were quiet. Schlichtmann had brought Conway and Gordon with him. Facher did not mind that. He motioned for them all to follow him into his office. He sat behind his desk, and Schlichtmann and Conway sat across from him, their coats folded in their laps. Gordon took a chair by the door, near the small refrigerator in which Facher kept leftovers from the firm’s weekly buffet. The office itself was small, too cramped for four people. “Some lawyers have very pretentious offices, big and sweeping,” Facher said, adding that he had been offered just such an office many times but had turned it down. “I don’t like waste,” he said.

  The office was cluttered with piles of paper and baseball memorabilia. A major-league bat, split at the handle, served as Facher’s doorstop, and a ball signed by Red Sox players occupied a prominent spot on his desk. On top of the bookcases and filing cabinets were souvenirs from his previous cases. Facher was in no hurry to get down to business. He noticed Schlichtmann looking around curiously, so he showed Schlichtmann a scale model of a railroad boxcar, a gift from the Southern Pacific Railroad, for whom he’d won a case. On the walls, Facher had hung his diplomas and pictures of himself with clients and colleagues from earlier years. Looking at the photos, Schlichtmann thought that Facher had not changed much. He had the same heavy-lidded eyes and lugubrious face, the same pursed lips. As a young man, Facher had been a bit heavier around the shoulders and chest and slightly fuller of face than he was now. Facher took particular pride in a framed photograph of one of his two daughters, which sat on the credenza behind his desk. The woman in the photograph appeared a few years younger than Schlichtmann. She smiled a thin, wan smile.

  “You’re married,” Schlichtmann said with mild surprise, realizing at that moment that he’d never thought of Facher as having children and a life outside of the law.

  “No,” replied Facher. His marriage, he told Schlichtmann, had ended a long time ago. Facher picked up a spongy rubber ball, tossed it in the air and caught it. He swiveled his chair around and threw the ball against the wall, catching it with both hands cupped cautiously as it bounced back, like a man catching a raw egg. “This is what I do to relax,” Facher said. As he threw the ball he talked. The case against Beatrice was no good, he told Schlichtmann. The ball thumped against the wall. There was no evidence that the tannery had ever used TCE (thump). Riley had never dumped anything on the fifteen acres (thump). Riley was a victim of midnight dumpers, just as the families were victims (thump). “You’ve got a lousy case, and you know it.”

  Schlichtmann admitted that the case against Beatrice was not as strong as the one against Grace. But it was not, he told Facher, a “lousy” case. The fifteen acres were saturated with TCE and other contaminants. “I think Riley dumped tannery waste on the fifteen acres. I’ve still got time to develop the case.”

  “You don’t want me in this case,” said Facher. “You’ve got Grace, and one deep pocket is enough. I’m only going to hurt you. I’m giving you a chance to get rid of me.” Facher added that he could not match the Unifirst settlement. “I don’t have that much to give you.” He thumped the rubber ball against the wall.

  It was obvious to Schlichtmann that Facher had found out how much Unifirst had paid. He thought that Facher was acting in an arrogant, insulting manner, every thud of the rubber ball like a slap. But Schlichtmann didn’t let himself feel offended. The first goal in any negotiation was to keep talking, and talking to Facher was the first step to a real negotiation. “We don’t have to talk numbers now,” said Schlichtmann. “Let’s get the decision-makers together first.”

  “You want the decision-maker?” said Facher. “I’m it. You want Mr. Beatrice Foods? He’s sitting right here. Tell me what you want. Make it reasonable, and I’ll accept, and we can get on with our lives.”

  “We can’t just throw numbers at each other,” said Schlichtmann. “That doesn’t work. We need to set aside some time so we can discuss this—your people and my people—in a neutral place.”

  Facher grunted at this. “Why don’t you bring your clients up here? Th
ey’re the decision-makers, aren’t they? Let me hear them say no to a million dollars.”

  Schlichtmann demurred. They had reached an impasse. Facher began telling stories about his past cases, about the Southern Pacific case, about the Saxon Theatre case. He didn’t mention the Baltic Birch case, which he had tried in front of Judge Skinner several years ago and lost, the last case that he had lost. Again he asked Schlichtmann for a number, and Schlichtmann again refused to give him one.

  Facher was exasperated. “I don’t understand why you won’t give me a number, any goddamn number.” He reached into his hip pocket, pulled out his wallet, and slapped a twenty-dollar bill on his desk. He leaned back in his chair. “What if I put six zeros on the end of that. Would you take it?”

  Twenty million dollars.

  Schlichtmann laughed but did not answer Facher’s question.

  The twenty-dollar bill remained on Facher’s desk, directly under Conway’s nose. Conway felt tempted to pick it up and put it in his pocket. He had only a few dollars in his own wallet, and not much more in his bank account. Twenty dollars would pay for dinner tonight. It was after eight o’clock and Conway was hungry. It seemed obvious to him that this discussion was going nowhere.

  Facher had a warning for Schlichtmann before he left. “You think you’re going to put those families on the witness stand and break everybody’s heart. You think the jury’s going to pull out their handkerchiefs and dab their eyes.” Facher shook his head resolutely. “It will never happen. Those families will never see the light of day.”

  Schlichtmann regarded Facher’s parting words as an idle threat. He did not give them a second thought. He could see no possible way that Facher could stop the families from telling their stories once he had a jury impaneled.

  He had survived the Woodshed, but the entire episode left him unnerved. There was an enormous amount of work to do in the coming months, and he could not afford another misstep. He had an ominous feeling about the judge. It seemed to him that Skinner treated Facher with more respect and deference than he accorded him. Something the judge had said about Facher at the Rule 11 hearing, three years ago now, had stuck like a burr in Schlichtmann’s memory. He recalled the judge saying, “I can’t let Mr. Facher’s judgment be substituted for mine, although I ordinarily would give it great respect.”

  The judge and Facher were of the same generation. They had gone to the same law school at virtually the same time. They had the same breeding in the law, and they had both risen to high positions in it. They even seemed to think alike. Schlichtmann had noticed that they had a habit of finishing each other’s sentences. Sometimes Schlichtmann felt as if he were eavesdropping on a private conversation.

  “These witnesses are not critical,” he’d heard Facher telling the judge at one hearing.

  And the judge had said, “It doesn’t sound to me as if they’re critical.”

  “They’re not critical in the least,” Facher said.

  “Beatrice is a great big food company,” said the judge.

  “Tropicana, LaChoy, and some other things,” said Facher.

  “This rinky-dink tannery represented about what, one percent of their gross income,” said the judge.

  “An absolutely insignificant acquisition,” agreed Facher.

  Schlichtmann had suffered in silence through a number of conversations like that. “It’s like listening to Tweedledee and Tweedledum,” he told Conway. It had merely annoyed him at first, but now it worried him. He knew he couldn’t compete with Facher for the judge’s respect, especially not since the Woodshed Conference.

  Billion-Dollar Charlie

  1

  A Harvard Law School professor named Charles Nesson had spent many years pondering the nature of judicial proof—proof in the courtroom—and its relationship to truth. Nesson taught evidence and criminal law at Harvard, and one particular riddle involving the use of statistics as evidence had absorbed him for some time. To solve it, he relied on a hypothetical case, which he called the Case of the Blue Bus.

  The facts of Nesson’s imaginary case were simple: Mr. Smith is driving down a dark two-lane road late one night when he encounters the headlights of a vehicle speeding toward him in the center of the road. To avoid a head-on collision, Mr. Smith swerves off the road and his car hits a tree. In the darkness, he sees that the vehicle speeding by him is a bus. While recovering from his injuries, Mr. Smith learns that the Blue Bus Company owns and operates 80 percent of the buses that drive along the route where the accident occurred. Mr. Smith sues the Blue Bus Company for damages. During the trial, he proves the aforementioned facts but admits that he cannot identify the color of the bus that forced him off the road.

  Given this evidence, Professor Nesson asked, can Mr. Smith win his case?

  If the Blue Bus case were a criminal trial, where the state has to prove its case beyond a reasonable doubt, Mr. Smith obviously could not hope to win. There is, after all, at least a 20 percent chance that the Blue Bus Company is not guilty. But this is a civil action, where the aim is to resolve disputes in a just manner, and in civil cases the plaintiff’s burden of proof is not as onerous. Mr. Smith has to prove only that it is “more likely true than not”—a standard often taken to mean by 51 percent or better—that the Blue Bus Company caused the accident. By that standard, it would seem that Mr. Smith should win his case.

  But Nesson believed that a verdict for Mr. Smith would be a grave error. “In this case and others like it,” Nesson wrote in the Harvard Law Review, “the plaintiff will lose; in fact, the case is unlikely even to reach the jury.” In the absence of a credible eyewitness or some other tangible piece of evidence—a scrape of blue paint on Mr. Smith’s car, for example—a jury could not hope to know the actual truth of the event. A jury might, of course, be willing to bet that the Blue Bus Company was liable, and the odds would greatly favor such a bet. But a verdict based simply on the odds, Nesson argued, even very good odds, has no moral or legal force, and sooner or later the public would find such verdicts and the judicial system that permitted them unacceptable.

  Each trial is a drama in its own right, wrote Nesson, a morality play watched by a public audience. “Through trials, society seeks not only to discover the truth about a past event, but also to forge a link between crime and punishment, between wrong and liability.” The judgments of the courts are meant to reinforce social rules and values and, at the same time, to deter behavior contrary to those rules and values. To achieve this end, the public has to believe that jury verdicts are statements about the truth of actual events, not mere probabilities. If that belief is ever lost, a society based on the rule of law would ultimately collapse into anarchy. To find for the plaintiff against the Blue Bus Company would be, in this sense, to find for anarchy.

  Judge Skinner was a regular reader of his alma mater’s famous Law Review. So it was, perhaps, not so strange that the Case of the Blue Bus should enter the Woburn case.

  The lawyers were gathered for another conference, the first since the Woodshed Conference, two weeks ago. Outside the tall windows of Judge Skinner’s courtroom, the slanting afternoon sunlight cast a golden glow on the city. It was unmistakably autumn light, and it reminded Schlichtmann of how little time remained before the trial, and how much he still had to do.

  “I have a question about this case,” Judge Skinner said at the end of the conference, apropos of nothing he and the lawyers had been discussing. “I was put in mind of it by reading an article by Professor Nesson at the Harvard Law School about the use of statistics in proof. Mr. Schlichtmann, perhaps you can help us out on this.”

  Schlichtmann rose from the counsel table and listened in an attentive but wary manner, one that evoked memories of schooldays.

  “It has to do with the trial itself,” continued the judge. “It occurred to me that you may intend to use a statistical analysis to prove causation by showing us the unlikelihood of so many instances of disease in a particular area. The question is whether evidence whic
h would not be the proper basis for a verdict becomes proper because an expert blesses it and says, ‘I, as an expert, would be willing to take this bet.’ If that’s going to be the case, I’d like to have some advance briefing on exactly how it’s going to work.”

  Schlichtmann knew nothing about Professor Nesson or his Law Review article, but he surmised that the judge was probably asking about the Harvard Health Study. Schlichtmann certainly hoped to use that study during the trial—it was a valuable piece of the evidentiary puzzle—but he could tell that the judge took a dim view of it. Schlichtmann didn’t feel prepared to debate this issue yet. He had to be careful about what he said. A moment passed, and then another as he considered how to answer the judge.

  “Is that going to be part of your case?” the judge asked again.

  “Obviously—” began Schlichtmann, and then he suddenly changed his mind. “Our case will be proven on clinical grounds, Your Honor.” He had almost said, yes, the Harvard study would play an important role, but he decided it was safer to speak about the hard, clinical evidence—Feldman’s tests, Colvin’s studies, the cardiology results, the physical examinations and medical histories of the families.

  The judge did not seem satisfied. “Well, specifically, are you going to use the—”

  “I will not use statistics to prove causation,” said Schlichtmann.

  “Okay, fine. Then my problems for the time being are resolved.”

  “May I say,” Schlichtmann hastened to add, “that epidemiology and statistics will be important in the case.”

  Facher wasn’t present at this hearing, but Cheeseman and Neil Jacobs were both there. Jacobs arose to address the judge. “The more direct question is whether the Harvard Health Study, which is this type of statistical analysis, will be offered as evidence in the case. I can’t tell from what Mr. Schlichtmann said how that question will be answered.”