A Civil Action

by Jonathan Harr

  What about what they had told Pete four months ago? Conway wanted to know. They’d said the case was worth twenty-four million dollars then. Now they were at a hundred and seventy-five million. “It’s crazy, Jan,” said Conway.

  Schlichtmann laughed. He called Conway “the soft underbelly.” He shook his head and said, “You’re being negative, Kevin.”

  Conway felt completely alone in the room. He could not talk to Schlichtmann, who was surrounded by others and who no longer seemed to listen to him, anyhow. Nesson and Kiley had his ear now. Conway felt as if he’d lost his bearings. Even his friend from childhood, Tom Neville, the cynical defense attorney, seemed gripped by the frenzy of the evening. Neville was talking big numbers, too.

  Conway wondered if he was the one who was crazy. Why didn’t he feel the way everyone else did? He kept thinking about the deed to his house in Uncle Pete’s files. He got another cigarette from Gordon and sat at the end of the table, smoking, watching the group talk excitedly among themselves. Nesson sat next to Schlichtmann and Kiley, and Phillips hovered over Gordon, who was chain-smoking Marlboros while he worked on the calculator.

  After a moment, Phillips came to sit next to Conway. “Well?” said Phillips.

  “I can’t believe this is going on, this talk about numbers,” Conway said bitterly.

  “It’ll pass, it’ll pass,” said Phillips in a soothing voice.

  Conway wasn’t sure what Phillips meant. Phillips had seemed infected by the delirium of money, too, talking about Grace’s two-hundred-and-fifty-million-dollar environmental insurance policy and the leveraged buyout of Beatrice, going on at that very moment, for seven billion.

  “This is insane, Mark,” Conway insisted to Phillips. “You know it’s crazy. They’re never going to give us this kind of money. Facher’s going to say, ‘Fuck you,’ and walk out.”

  But nobody was listening to Conway tonight.

  At the end of the evening, they discussed the seating assignments for the negotiation. Gordon had already reserved a private conference room, the Wendell Phillips Room, at the Four Seasons Hotel. The room, adorned with crystal chandeliers, overlooked the Public Garden adjacent to the Boston Common, and a statue of Wendell Phillips, Mark Phillips’s great-uncle. Schlichtmann and Conway, along with Gordon and Phillips, had once negotiated another settlement there, with the insurance adjusters for a Boston hospital. They’d sealed that settlement by sharing a fifty-dollar bottle of single-malt Scotch whiskey with the adjusters. Afterward, they had walked out to the Public Garden and Phillips had climbed the statue of his ancestor, frozen in heroic oratorical pose, and planted a kiss on the bronze cheek.

  Gordon instructed the Four Seasons to provide breakfast—freshly squeezed orange juice, melons, coffee, and croissants and other pastries, along with fresh flowers and sterling-silver water pitchers. If it all went as expected, Gordon wouldn’t have to worry about being able to pay for it. He wouldn’t have to worry about paying for anything ever again. He also made arrangements for lunch, accompanied by an “upgraded” wine (as Gordon called it), and for dinner as well, if that should become necessary.

  Schlichtmann decided that they would all sit on the side of the long, oval table that faced out to the Public Garden. He didn’t want Facher and Cheeseman and their partners to feel uncomfortable with the glare of the sun in their eyes. Schlichtmann would sit in the middle, flanked by the two money men, Gordon and Phillips. Conway and Crowley would sit on one side, Nesson and Kiley on the other.

  These plans delighted Nesson, who’d never before attended a big-money settlement. “This is scripted like a Hollywood production,” Nesson said in amazement.

  According to the script, Schlichtmann would talk first about the process of settlement, about involving insurance companies and corporate decision-makers. He’d tell the defense lawyers that as a condition of settlement their clients had to agree to clean up the Aberjona aquifer and admit their responsibility. Then Gordon would take over and explain the details of the $175 million deal.

  “What are you going to wear?” Gordon asked Schlichtmann.

  “Black suit and red tie,” said Schlichtmann. “Red for passion.”

  “Black is your trial suit,” said Gordon. “This is a business meeting. Gray is for business. You going to wear your blue suit tomorrow, Mark?” he asked Phillips. “My blue’s better than yours. What about you, Kevin?”

  Conway hated this talk about apparel. “I’ll come up with something special,” he said.

  “Not the wolf’s head tie with the gravy stains,” warned Schlichtmann. “Not the suit you got ice cream all over, the one your wife put through the wash.”

  3

  Cheeseman and two of his partners arrived at the Four Seasons promptly at ten o’clock. Schlichtmann greeted them as they came in and exchanged a handshake with Cheeseman. It seemed faintly ridiculous, since he and Cheeseman had seen each other almost every day for the past year and had never shaken hands on those occasions. They stood by the buffet table, near the silver coffee urn and the croissants and fruits, and made an effort to chat, but the conversation ended lamely.

  Conway gazed out the window at the snow-covered Public Garden and the statue of Wendell Phillips, and thought again about the deed to his house in Uncle Pete’s filing cabinet. He really should have told his wife that he’d surrendered the deed, but he couldn’t figure out how to say it.

  Facher was ten minutes late. He entered the room with Frederico, smiled agreeably, and he, too, shook Schlichtmann’s hand, then Nesson’s. They were late, Facher explained, because they had walked all the way from the office. Facher didn’t like paying for taxicabs. As he took off his coat, he told Nesson that he had just been given “a chair” at Harvard.

  This news shook Nesson. Facher with an endowed chair? Nesson had never imagined that Facher was such a distinguished scholar. “Which chair?” asked Nesson.

  “A black chair, with arms,” said Facher. It had his name inscribed on a brass plate on the back. His law students had given it to him.

  Nesson laughed and congratulated Facher.

  After a few minutes, the lawyers took their assigned seats at the table. Schlichtmann began talking about how he and his partners took only a few select cases and worked to the exclusion of all else on those. (This was Schlichtmann’s way of saying there was no stopping them.) He said he wanted a settlement that would provide for the economic security of the families, and for their medical bills in the future. The families, he continued, weren’t in this case just for money. They wanted an acknowledgment of the companies’ wrongdoing, Schlichtmann said, a full disclosure of all the dumping activities.

  “Are you suggesting there hasn’t been a full disclosure?” Facher asked.

  “No,” said Schlichtmann, who was suggesting exactly that, but now made an effort to avoid confrontation. “But as part of a settlement, we want a disclosure that the judge will bless.” Another condition of settlement, he added, was an agreement that the companies clean their land of the toxic wastes, and pay the costs for cleaning the aquifer.

  None of the defense lawyers had touched any of the food or drink. As Schlichtmann spoke, he saw Facher reach for a bowl of mints on the table and slowly unwrap the foil from one. Facher popped the mint into his mouth and sucked on it, watching Schlichtmann watch him.

  Schlichtmann talked for fifteen minutes. Then Gordon laid out the financial terms of the settlement: an annual payment of $1.5 million to each of the eight families for the next thirty years; $25 million to establish a research foundation that would investigate the links between hazardous wastes and illness; and another $25 million in cash.

  Cheeseman and his partners took notes on legal pads as Gordon spoke. Facher examined the pen provided courtesy of the Four Seasons, but he did not write anything on his pad. Facher studied the gilt inscription on the pen. It looked like a good-quality pen. These figures, he thought, were preposterous. They meant that Schlichtmann did not want to settle the case, or else he was craz
y. Maybe Schlichtmann simply wanted to go to trial. This opulent setting, and Schlichtmann sitting at the table flanked by his disciples like a Last Supper scene, annoyed Facher. Where was Schlichtmann getting the money for all this?

  When Gordon finished, silence descended.

  Finally Facher stopped studying the pen. He looked up, and said, “If I wasn’t being polite, I’d tell you what you could do with this demand.”

  Cheeseman had added up Gordon’s figures. By Cheeseman’s calculations, Schlichtmann was asking a total of four hundred ten million over thirty years. “How much is that at present value?” Cheeseman asked Gordon.

  Gordon replied that he would rather not say. “Your own structured-settlement people can tell you that.”

  Facher took a croissant from the plate in front of him, wrapped it in a napkin, and put it into his pocket. That and the mint he had consumed were the only items the defense lawyers had taken from the sumptuous banquet that Gordon had ordered.

  Cheeseman and his partners asked a few more perfunctory questions about the terms of disclosure, which Schlichtmann answered.

  Facher had gone back to studying the pen. “Can I have this?” he said abruptly, looking at Schlichtmann.

  Schlichtmann, appearing surprised, nodded.

  Facher put the pen into his breast pocket. “Nice pen,” he said. “Thank you.”

  Then Facher got up, put on his coat, and walked out the door. Frederico, who had not uttered a word, followed him.

  Cheeseman and his partners stood, too, and in a moment, they followed Facher.

  Schlichtmann and his colleagues sat alone on their side of the table. Gordon looked at his watch. The meeting had lasted exactly thirty-seven minutes, he announced. “I guess we’re going to trial,” Gordon added.

  Schlichtmann was surprised, but only for a moment. He looked at his colleagues and shrugged. “We’re going to get a jury in two weeks,” he said. “The pressure’s on them.”

  Conway got up and paced the room and smoked a cigarette. He didn’t feel like talking. There was nothing to discuss. They’d gotten nothing out of this so-called settlement conference, not even information from the other side. He put on his coat and, along with Crowley, walked up Tremont Street back to the office. He kept wondering if Facher had actually said, “Fuck you,” or if he’d just imagined it.

  “I thought I heard Facher say ‘fuck you,’ ” Conway said to Crowley. “Did he say that?”

  “He didn’t,” said Crowley. “But he might as well have.”

  Judge Skinner learned later that day that the meeting had not produced a settlement, but he didn’t inquire about the specifics of Schlichtmann’s demand, which was probably just as well for Schlichtmann. “It’s a very complex proposal” was all that Facher told the judge. “I won’t go into the details, but I, personally, am not thrilled with it.”

  No one brought up the subject of settlement again until two weeks later, on the first day of jury selection. That morning, on the bus coming in to work, the judge read a Boston Globe article in which Anne Anderson was quoted as saying that money wasn’t important to her. “To me, it would be blood money in the strictest sense,” the Globe quoted Anne as saying. “I would just like them to say, ‘Yes, we made a mistake.’ ”

  In his chambers, the judge said to Schlichtmann, “Mrs. Anderson is trumpeting in the newspapers. She says she doesn’t care about money. But if she doesn’t care about money, I think this case can be settled.”

  Schlichtmann laughed politely, but it came out sounding as if he’d just heard a bad joke.

  “Ha, ha,” replied the judge, mocking the thinness of Schlichtmann’s laugh. “Somebody cares about money.”

  “Corporations care about money,” said Schlichtmann, who suspected then that the judge had learned the details of his settlement proposal.

  “But if you’re not arguing money, you can probably settle this case.”

  Schlichtmann shook his head ruefully.

  “Well, then, somebody ought to tell Mrs. Anderson,” said the judge. “Because she doesn’t think it’s about money.”

  4

  Jury selection began on schedule, at nine o’clock on a Tuesday morning in mid-February. It was, of course, preceded by the usual maneuvering. Cheeseman and his partners claimed that W. R. Grace could not get a fair trial in Boston because of all the adverse publicity. They wanted the case moved to another venue. They suggested Bangor, Maine.

  “Are you serious?” muttered the judge. “One of those big Superfund projects is up there. I think you’re out of the frying pan and into the fire, going to Bangor.”

  Schlichtmann didn’t even have to argue against this motion. But there had been a great deal of publicity about the case. The most widely watched show in America, 60 Minutes, was about to air its own pretrial version within the next few weeks, a version based largely on what Schlichtmann had told the show’s producer, David Gelber. Out in Woburn, 60 Minutes correspondent Ed Bradley had taken a walking tour of the Pine Street neighborhood with Anne Anderson, a camera crew trailing all the way, and then Bradley had interviewed Al Love and his wife around their kitchen table.

  So Judge Skinner took special care in selecting a jury. Usually he questioned an entire jury pool, some fifty people, en masse in his courtroom. But for this trial he chose to conduct an individual voir dire of each prospective juror in the privacy of his chambers. The lawyers would be present, of course, but the judge alone would pose the questions.

  In Schlichtmann’s mind, the ideal jury would consist of twelve housewives much like Anne Anderson, all mothers with young children. Facher didn’t want any jury to hear the families’ sad stories, but he especially did not want mothers with young children. As it happened, one of the first prospective jurors to enter Judge Skinner’s chambers was a comely, well-dressed young woman who had two children, ages four and six. It took the judge ten minutes to pose all his questions to the woman: Did she know anyone who lived in Woburn? Had she ever worked with chemicals? Had anyone in her family ever had leukemia? Had she ever lived in a town where the wells had been closed because of pollution? Had she read or heard anything about this case? The woman answered with a string of negatives.

  The judge told her that the case involved the death of several small children from leukemia, for which the plaintiffs blamed two large corporations. Was there anything about these circumstances that would make it difficult for her to view the evidence fairly and impartially?

  The woman looked thoughtful for a moment. “No, I don’t think so.”

  “You have small children of your own,” said the judge. “Would that be a problem?”

  “I don’t think so.”

  “You think you could handle the evidence impartially?”

  “Yes.”

  The judge asked the woman to step outside for a moment. “Any problems?” he asked the lawyers.

  Facher replied, “Whether she says so or not, I think it’s very difficult for any woman with small children to decide the case on the evidence rather than emotion. I think it’s almost an impossible task.”

  “Well, would you exclude a father with small children?” asked the judge.

  “No,” said Facher. “But I think a woman who carried a child for nine months is a special class.”

  A very large special class, indeed. “The death of children produces an emotional response,” the judge said. “There’s no way to avoid it. She seems like a very intelligent young lady. I will seat her.”

  The woman did not remain seated for long. Facher used the first of his six peremptory challenges on her.

  Many people in the jury pool readily admitted—all too readily, in some cases—that they believed big corporations were untrustworthy and acted with reckless disregard when it came to the environment. Some people clearly said so just to avoid jury service. Others seemed to mean what they said. A woman in her early thirties, married with no children, told the judge that she lived in a town where the wells had been contaminated by a larg
e oil company. “The stuff is just pouring into these people’s wells, and nothing’s happening. I just feel like they’re so small compared to this big company.”

  Excused.

  A college administrator whose sister-in-law had developed aplastic anemia after working with chemicals in an auto plant told the judge, “I feel funny about large companies maybe not being honest.”

  Excused.

  A woman in her sixties, a department-store clerk with five grown children: “I think I would be a little biased against the companies.”

  “Why?” asked the judge.

  “I just think that companies are—they’re too big, and they really sort of do what they want to, regardless of what the law says.”

  Excused.

  And then there was the woman in her mid-fifties, well dressed and obviously affluent, who told the judge that her husband once had “some dealings” with Facher’s firm.

  “Would that lead you to favor Hale and Dorr’s claim?” the judge asked.

  “Not necessarily,” replied the woman. “They charged my husband too much money.”

  Excused.

  Schlichtmann regretted losing all these candidates. But the judge also excused those who obviously favored Grace and Beatrice. The retired Boston transit worker, for example, who said of J. Peter Grace, chairman of W. R. Grace, “Well, I admire him. I have the greatest respect for the man. I would never want to see any harm come to him.”

  The judge and the lawyers greeted this statement with stunned looks and a moment’s silence.

  “You wanted an honest answer,” said the man, sounding defensive.

  Excused.

  On a good day the judge would question as many as eighteen prospective jurors. Some days he got through only ten. By the fifth day Facher and Cheeseman had used all of their peremptory challenges, all but one on women with children. Schlichtmann, too, had used all of his, all on men—on accountants, engineers, and bankers. Then, on the sixth day, Schlichtmann had a scare. Into the judge’s chambers came a man who manufactured chemical reagents for medical labs. The chemist said he had followed reports of the Woburn case in professional journals with great interest. “I don’t think they’ll be able to prove that the materials these two companies disposed caused leukemia.”