Gordon figured they could make it until the trial. Once they began selecting a jury, anything could happen. They might settle with Beatrice, perhaps even Grace. And if that didn’t happen, he’d find a way to get through the trial, even though the creditors might be banging on the courtroom doors.
The only thing they could not afford, Gordon figured, was a postponement of the trial. He could not imagine any way of financing Schlichtmann through a long delay.
Facher’s Plea
1
Late at night Facher would sit in his war room, in the cavernous space on the twenty-first floor that Hale and Dorr used for storage. From his chair at the wooden table in the center of the room, in a pool of lamplight, he could look out the windows and into the darkened offices of the skyscraper across the street. He had just turned sixty. One of his cats, his only and beloved companions at home, was dying of diabetes. “Life is so short,” he said not long after his birthday. “It seems foolish to devote it to motions to dismiss, but that’s what I’ve done.”
Sometimes he’d leave the war room and wander the dimly lit corridors of the firm, going from floor to floor past the dark, deserted offices. He’d stop in one of the kitchenettes and peer in the refrigerator, looking for something to eat. If he saw a pile of dirty dishes and coffee cups, he might roll up his sleeves, fill the sink with soapy water, and begin washing. “That’s a good day’s work,” he’d say when he finished.
One of Cheeseman’s partners had called Facher last fall and explained a plan to hire Litigation Sciences, a firm that specialized in jury research. Was Facher interested in sharing the costs? Against his better judgment, Facher had reluctantly agreed to contribute twenty-five thousand dollars for a telephone poll of five hundred potential jurors in the Boston area. Facher personally regarded “scientific” jury research with skepticism, although the field had become quite fashionable among many trial lawyers and his own partners at Hale and Dorr. A month later, Facher went to a meeting at Cheeseman’s firm, where he received several pie charts based on the telephone interviews. The pie charts told him that he could not hope to win the Woburn case. Eighty-two percent—409 of the 500 people interviewed—felt that large corporations should, as a general rule, be held responsible for damages in toxic waste cases. Among those people who knew of the Woburn case from newspaper articles or the television news, 77 percent had already decided that both Grace and Beatrice were responsible for the leukemia deaths. Given responses like these, the jury research expert told the lawyers, the best the two defendants could hope for was simply to “contain” the damages.
“I didn’t need to pay twenty-five thousand dollars to be told that,” Facher grumbled.
A few weeks later, Cheeseman’s partner had called again, this time to inform Facher that they planned to stage a mock trial and watch several panels of “jurors”—people selected at random off the street—deliberate from behind one-way mirrors. Facher had refused to contribute. “I wouldn’t pay another nickel after those pie charts,” he said. “I think it’s pissing money away.” Facher later estimated that the jury research had cost Cheeseman’s client at least a hundred thousand dollars. “The gold-plated defense,” Facher called it in disgust. “Some clients think the more money you spend, the harder you’re working.”
Facher heard that one of the mock jury panels had awarded the Woburn families enormous sums of money, as much as two hundred million, according to one account. Facher shrugged. He didn’t believe in mock jurors anyway.
In three weeks they would begin selecting a real jury. Facher had never expected Schlichtmann to get this far. He opened a cabinet drawer and saw thick files containing the results of Colvin’s blood tests. He took out a file, looked at page after page of numbers, columns of numbers each labeled at the top with words like “blastogenesis” and “Dim 8’s” and “helper-suppressor cells.” He realized that he did not understand what he was looking at. He put the file back and opened another drawer, this one filled with hydrogeological studies, thousands of pages of well logs and more numbers—water levels, pumping rates, traces of chemicals measured in parts per billion. He went at random from one drawer to another. He opened a drawer that contained the medical records of two of the children, both dead before age twelve—six thousand pages of nursing notes, lab reports, chemotherapy treatments, bone-marrow aspirations, and notes from consulting doctors. Other drawers held the medical histories of the twenty-eight living plaintiffs, their cardiological tests, psychomotor tests, electromyography tests, psychiatric profiles. Facher began counting the number of file drawers. He had an associate count the deposition transcripts. There were 159 bound volumes totaling 23,337 pages. There were forty-three expert witnesses in the case. Facher didn’t even know some of their names, never mind the substance of their opinions. He had not had time to sit down and read those depositions, and there were thirty-six more that had not even been transcribed yet.
He was, he realized, not ready to try this case. He felt he needed at least another six months to prepare. He had already asked Judge Skinner for a continuance once, two months ago, but the judge hadn’t taken his request seriously. Facher thought perhaps he hadn’t been forceful enough. He’d made only an oral argument—“lawyer’s words,” as he put it, “and they come cheap.”
He decided to ask again. This time he would put his request in the form of a personal affidavit to the judge, one in which he could invoke the weight of his reputation and career. Facher did not, as a rule, like lawyers’ affidavits. “The New York style of personal affidavits that flood the courts,” he once called them. “I think they’re undignified and unprofessional.” But on this one occasion, he felt justified.
“I am Jerome Facher, a senior partner in Hale and Dorr,” his affidavit began. “I am chairman of the Litigation Department at Hale and Dorr and have held that position since 1976. I have had extensive trial experience in complex litigation of all types, including securities regulation, trade regulation, anti-trust, product liability, trade secrets, high technology, patents, banking.…”
The trial, wrote Facher, would be “the single most complex medical and scientific case ever tried by any counsel in this case.” He estimated that it would take “from seven months to a year or more.” Facher himself had measured the size of the file drawers and added the numbers together. “A rough estimate of the magnitude of medical, technical and legal materials amassed thus far, stacked vertically, would exceed sixty feet, or the equivalent of a three-story building.”
He asked for a postponement of seven months, until September, and he ended his twenty-page affidavit by telling Judge Skinner that he had written it reluctantly “after much thought and deliberation, by trial counsel whose experience and tradition has been opposed to seeking trial continuances and who has been consistently ready for trial in state and federal courts. This is the first occasion I have made an affidavit which supports a continuance of a trial date. I do not expect to make such an affidavit again.”
It had taken him a week, working off and on between depositions, to complete the affidavit. It was a personal plea, but he felt it was a dignified one. He felt proud of it. He finished it on Sunday night in late January, in plenty of time for the judge to read it before the pretrial conference on Wednesday afternoon.
Judge Skinner had not read Facher’s affidavit by the time the lawyers convened in the courtroom on Wednesday. The judge could not, in fact, even find the affidavit among the piles of motions on his desk. He rooted around for a while and finally unearthed it.
“I do pause to give Your Honor a moment to peruse it,” Facher told the judge with evident dismay.
Schlichtmann sat at the plaintiff’s counsel table with Nesson on one side of him and Conway on the other, waiting in silence as the judge read to himself. Gazing out the courtroom windows at the dull winter sky, Schlichtmann noticed that it had begun to snow. If Facher succeeded in persuading the judge, summer would come and go before the trial finally got started. Schlichtmann knew he c
ould not survive until September. The case was costing his firm thousands of dollars every day, and it would keep on costing until the trial began.
“Seven months to a year or more?” exclaimed the judge, looking up from the affidavit. “No, the trial will not take that long. Some of you may be used to patient judges. I am not one of those. I will not let testimony go on and on.”
Judge Skinner went back to the affidavit. When he finished, he looked thoughtfully at Facher and said, “I know it’s hell to be under the gun from some cockamamie judge who wants to go to trial all the time. But it also raises hell with your time to get all cranked up for a case and then drop it for half a year. It’s just a terrible waste.”
Entering the judge’s courtroom that afternoon, Facher had felt almost certain that his affidavit would persuade the judge to delay the trial. Now he realized that he’d have to do more.
“I’m asking you, practically begging you,” Facher said. “I’m not in the least cranked up. That’s the God’s truth. We’ve had a schedule that was just absolute insanity. We have to bring people in, we have to prepare them. We have a number of novel theories, and it ain’t easy.”
Facher’s plea—the old lawyer actually begging the judge—amazed Schlichtmann. Nesson was busy taking notes on a yellow legal pad, and Schlichtmann glanced at them. Nesson had written: “ ‘It ain’t easy’—Jerry Facher, Jan. 29, 1986.”
Schlichtmann picked up a pen and wrote on Nesson’s pad: “Are we okay?”
“So far,” wrote Nesson back. Then he added: “Do not assume that we have a Feb. trial date.”
“I’m working night and day, weekends,” Facher was telling the judge. “I’ve canceled all my other obligations. I thought maybe once in my career I would say to you that I’m not ready. This is not a case of some lawyer’s grandmother dying for the third or fourth time. Nobody has slacked off.”
“I’m not suggesting anybody has,” said the judge.
Schlichtmann decided it was time he said something. “The plaintiffs are prepared to go forward, Your Honor. We’ve made good use of the time. Mr. Facher says that he hasn’t been able to read the material, but I have. I deposed eight expert witnesses in one day—”
Facher made a face. “Jan, the way you did them, you might as well not have done them. It’s not the kind of careful point-by-point examination that I—”
“Oh, I don’t know,” said Schlichtmann. “I got a lot out of them.”
“If you delay,” the judge said to Facher, smiling, “you may give Mr. Schlichtmann a chance to get better prepared.”
“Exactly,” agreed Schlichtmann. “It’s time to say enough is enough and try the case. I know the defendants are just as ready as I am. They are very excellent trial lawyers. You’ll not see any better. I’m honored to go against them.”
Facher ignored this shallow compliment. “I’m proud of the way I prepare cases,” he told the judge. “I am not able to prepare this one. Is it right to force a party to trial if a lawyer says to you, ‘I just can’t do it. Don’t make me do it’? As bad as it sounds on the record, that’s what I’m saying. Believe me, it hurts to say that because I’m a proud lawyer.”
“What do you think about this,” the judge said. “We go ahead and empanel the jury as scheduled and at least get them insulated to the extent we can. Then we’ll commence trial in March instead of February. How does that sound?”
“I have to say it doesn’t help me,” replied Facher. “I am not a lawyer who tries to bargain with the Court. I don’t happen to be one of those lawyers who exaggerate.”
“I’m not suggesting I don’t believe everything you’re saying,” said the judge. “If it was a matter of a week or two, I could deal with it. But I think we really have to get started. The only thing to do is to bite the bullet and go.” The judge paused for a moment, and then added, speaking to no one in particular, “I’m very sympathetic to Mr. Facher’s point of view. I’d hate to be in his position.”
Facher said softly, “I’m more than a little disappointed.”
“I can tell that you are,” said the judge, just as softly. “I’m sorry.”
Facher had one last hope of stopping the trial. He said to the judge, “I would like to get Your Honor involved in a possible settlement of this case. That’s a very important and neglected issue that needs the Court’s intervention. It really does, and I’m not a big one for judicial intervention.”
“If there’s any possibility of settlement,” said the judge. “I don’t want to talk to people who don’t want to settle.” He looked at Schlichtmann. “Do you want to settle?”
“Of course,” replied Schlichtmann. “Plaintiffs always want to settle in a reasonable and fair manner.”
“Ask him how much he wants to settle for,” said Facher sarcastically. “See if you get an answer, because I haven’t gotten one yet.”
“You do have to start with a figure,” the judge said to Schlichtmann. “You can’t expect the defendants to bid against themselves. Are you in a position to generate a realistic—not a pro forma—demand for the whole case?”
“Certainly,” replied Schlichtmann.
“Why don’t you do that tomorrow? Sometimes,” continued the judge, musing, “if you examine what people really want, it’s surprising how quickly a case will settle. The main fuel, I think, in lawsuits for the death of children is an overwhelming sense of personal guilt. Mostly, I don’t think parents really want money. They may indeed be offended that money is an equivalent for life. What they do want is to have it said clearly that this wasn’t their fault.”
2
It was dark when Schlichtmann left the courthouse that evening. He walked with Conway, his Sancho Panza, and Nesson, his Harvard law professor, down Milk Street in the frosty January air, his coat open, feeling elated. He had survived Rule 11, summary judgment, the judge’s wrath in the Woodshed, and the magistrate’s petty scorn. He had survived discovery and Facher’s plea for a continuance. He was going to get a jury at last.
Back at the office, he shouted in jubilation. The secretaries and paralegals gathered around to hear what had happened. He told it all again when Phillips and Gordon dropped by that evening, and once more to Kiley and Neville when they showed up. “ ‘I’m a proud lawyer, I’m practically begging you,’ ” Schlichtmann crowed. “Imagine that! Facher begging the judge!” To his colleagues that evening, he said, “The only question now is how big we’ll win.”
That night, Schlichtmann and his team went out to the Hampshire House, to a private dining room, to work on a settlement proposal over dinner. Schlichtmann had assured the judge he was ready to deliver a reasonable demand by tomorrow, but no one had given any thought to what they might actually ask for, not since Nesson had arrived and suggested that twenty-four million for this case was mere pocket change.
Midway through the evening, after much debate, they decided that a hundred million dollars seemed like a reasonable figure. On that evening, at least, after listening to Facher beg, it did not seem like an outlandish sum.
Kiley argued for more. “They’re the landed gentry and we’re the warriors,” he said. “We’re walking in and putting our sword on the table.”
Some others also thought a hundred million might be too little. They might “lose opportunity,” as Gordon put it. “We don’t want to cap ourselves,” he said.
So in the end, they compromised. They decided to ask for a hundred and seventy-five million. That would allow room for negotiation down to a hundred million, if that should become necessary. But they wouldn’t be so crude as to ask for such a sum outright. They would present a package of demands and a payment schedule.
Schlichtmann recalled the judge mentioning a settlement in which a company had established a scholarship in the name of a boy killed by one of its outboard motors. What about setting up several scholarships? Better yet, what about demanding that Grace and Beatrice put up the money for a foundation for leukemia research, perhaps at the Dana Farber Cancer Institute
in Boston? Or maybe endowing a university chair in environmental health?
Gordon liked the last idea. “They all went to Harvard,” he said, referring to the defense lawyers. “They’d love that.”
“Give somebody else a chance,” said Kiley. “Give it to Boston University.”
After some discussion, they settled on twenty-five million for a leukemia foundation, another twenty-five million in cash, and the rest to be paid out in installments to the families over thirty years.
Gordon shed his jacket, rolled up his sleeves, and went to work on the calculator. Soon he had piles of paper next to him. He had worked on plenty of structured settlements involving a million dollars, and even some for two and three million dollars, but never one with so many millions to disburse. A million dollars a year to each family for thirty years? That sounded like too much. Gordon tried dividing it into a monthly sum, but that sounded even worse—$83,333 a month for thirty years. Maybe a larger cash payment up front?
“Come on, Gordon,” said Schlichtmann. “It’s not that difficult. Just make it look good.”
Conway got up and walked around the table. He leaned over Gordon and looked at the figures. He lit a cigarette and sighed deeply, turning to Schlichtmann. “This is ridiculous, Jan. You’re going to give them this demand and they’re going to laugh at us. They’re going to get up and leave.”
Schlichtmann expected just such a comment from Conway. “Are you kidding?” he said to Conway. “We’re going to be there all day negotiating.”
Conway had his reasons for worrying. The deed to his house in Wellesley was now at the Bank of Boston, in Uncle Pete’s files. Gordon had gone to Uncle Pete for more money, and this time Pete had said he would need collateral. Gordon had pledged Schlichtmann’s condominium and the houses of both Conway and Crowley.
A Civil Action Page 30
