A Civil Action

by Jonathan Harr

  Schlichtmann always spoke of the jurors with respect, almost reverence. He believed they could sense negative thoughts, and so he made an effort to think pure thoughts about them and to extol their virtues. He especially liked the jury foreman, William Vogel, a utility company manager in his early sixties. To most observers, Vogel appeared thoughtful, attentive, and somewhat reserved, but in Schlichtmann’s mind these qualities became elevated to a higher plane—to wisdom, probity, and dignity. He recalled that Vogel had once thanked him when he’d handed the foreman a document. Schlichtmann sat close enough to the jury box to know that Vogel had never thanked Facher, and from this gossamer piece of evidence Schlichtmann concluded that Vogel must be on his side.

  One morning during the sixth week of trial, Schlichtmann decided for the first time in his life not to wear a suit vest to court. He felt constricted by the rituals of the courtroom and he sought relief by shedding clothing. The next day the court stenographer told him he looked better without the vest. “I heard one of the jurors say so, too,” she added. From that day on, Schlichtmann never again wore a vest in the courtroom.

  The lawyers, of course, watched each other as closely as they watched the jurors. One afternoon, a Grace lawyer named Sandra Lynch, one of Cheeseman’s partners, approached the judge’s bench with a serious complaint about Schlichtmann. “I’m told that as the jury started to leave, Mr. Schlichtmann had a little colloquy and suggested they take an exhibit up with them.”

  The judge’s eyes widened. “Oh?” he said to Schlichtmann.

  Schlichtmann glared at Lynch. Any improper contact with the jury could result in an immediate mistrial. “Your Honor,” Schlichtmann began, trying to explain.

  But the judge was already angry. “Absolutely no colloquy with the jurors—”

  “It was no colloquy,” interrupted Schlichtmann hastily. “The juror looked at me and was about to say something. He had the exhibit in his hand. I turned away from him. I’ve had no colloquy, no contact whatsoever.” Schlichtmann took a deep breath. “That’s all I need,” he added, more to himself than the judge.

  “All right,” said the judge, still looking stern.

  The next morning, during a break in the proceedings, the second juror, Linda Kaplan, started coughing. Schlichtmann stood at his counsel table, only a few feet away from Kaplan. He had a pitcher of water and paper cups on the table, within easy reach. He glanced at Kaplan, debating whether he should offer her a cup of water, and then decided he could not risk it. Facher, a dozen paces distant, poured water from his own pitcher and started toward Kaplan. Then one of Cheeseman’s partners briskly crossed Facher’s path and reached Linda Kaplan first with his own cup of water. Facher, intercepted in mid-stride, stood in contemplation for a moment and then raised the cup to his lips and took a sip.

  Schlichtmann witnessed this scene in pained silence. He would have liked to explain to Kaplan why he had ignored her distress, but that was impossible. Had it made any difference? Of course not, thought Schlichtmann, but it made him shudder to think of turning a cold shoulder on a juror.

  Schlichtmann returned from court one afternoon to find that the telephone had been cut off. Without the warble of the phone, the office was eeriely silent until Gordon arranged to pay the phone company. The first call came from a lawyer in New Mexico who wanted Schlichtmann’s advice on a toxic waste case. “Do you want to talk to him?” asked Kathy Boyer.

  “No,” said Schlichtmann. He added, “Tell him not to take the case,” he added.

  The next call came from Schlichtmann’s mother. He didn’t want to talk to her either, but Kathy said, “I think you’d better.”

  “Is she all right?” asked Schlichtmann.

  “You don’t want to talk to her,” said Gordon, grimacing and shaking his head.

  “Why not?” Schlichtmann looked at Gordon suspiciously. “Did she get an eviction notice?”

  “Probably,” said Gordon.

  “James!” he shouted at Gordon. “How come you didn’t take care of it?”

  Gordon shrugged wearily and said that it had slipped his mind. He promised he would talk to the landlord tomorrow.

  Back from court, Conway went to the kitchenette for a cup of coffee and found the pot empty. He searched for coffee filters and found only an empty box. He dumped out the old coffee grounds, carefully rinsed the used filter, put it back into the coffee maker and then looked for coffee. He found only an empty can. He asked Peggy why no one had bought coffee. “There’s no petty cash,” said Peggy.

  Schlichtmann, consulting with his expert on courtroom graphics, an MIT graduate named Andy Lord, wanted new exhibits to replace ones the judge had thrown out because of Facher’s complaint that the perspective was “distorted.”

  “When do you want them?” Andy Lord asked Schlichtman.

  “Tomorrow morning,” said Schlichtmann.

  “Tomorrow morning? Impossible! I can’t do it by then.”

  “Of course you can,” said Schlichtmann. “What the hell am I paying you for?”

  “Jan, I haven’t been paid since November,” said Lord, who was, in fact, owed more than forty thousand dollars.

  “Talk to Gordon,” said Schlichtmann.

  A moment later, Patti D’Addieco appeared at the conference room door. “Andy says he needs some money for supplies.”

  “Get it from petty cash,” said Schlichtmann.

  “There is no petty cash anymore,” said Patti, not for the last time.

  Schlichtmann would gather in the office kitchenette for lunch at one o’clock every afternoon with Conway and Crowley, Nesson and Kiley, and often Gordon and Phillips. They would lean against the counters or sit on the stools and conduct a postmortem of the morning’s events while the secretaries and paralegals listened in and sometimes offered their opinions. Schlichtmann, who rarely ate anything for breakfast, looked forward to these lunches. He liked Chinese food, but the secretaries tried to keep costs down by ordering sandwiches. They didn’t always succeed. “Sandwiches again?” Schlichtmann would cry in dismay. “My God, even laboratory rats get a change in their diet. Can’t we have Chinese?” So Kathy or Peggy or one of the other secretaries would order Chinese. The bill would come to Mary Zoza, the firm’s bookkeeper, a middle-aged woman who lived alone with three cats and kept her graying hair in a tight librarian’s bun. Mary Zoza nearly fainted the afternoon, seven weeks into the trial, when she got a Chinese lunch bill for $124. She began cooking lunches at home—roast chickens, big bowls of salad, spaghetti and meatballs—and bringing them in to work. Schlichtmann would exclaim in delight when he saw one of these meals, and this in turn seemed to delight Mary Zoza.

  Gordon tried to cut costs by instructing Mary Zoza to pay only those expenses that were absolutely necessary to keep the office running. He told her to cancel all newspaper and magazine subscriptions. No more membership dues to the American Bar Association, the Boston Bar Association, or Trial Lawyers of America. No more lawbooks or journals from West Publishing or Martindale-Hubbell. Gordon put a stop to the twice-a-week fresh flower arrangements from Fleural Lis. He saved another two hundred dollars a month by canceling the contract with the Greening Touch Company, which pruned, watered, and fed the office’s potted ferns and ficus trees. (“It’s fucking ridiculous,” Gordon said of that contract.) He stopped paying Schlichtmann’s student loan from Cornell Law School. He stopped paying the bank loan on Schlichtmann’s Porsche, and he let the insurance lapse. He told Kathy Boyer that henceforth all employees should take public transportation instead of taxicabs when on office business.

  But all of these economies added up to only a small fraction of the trial expenses. They didn’t even cover, for example, the fee charged by the court stenographer who typed up each day’s trial transcript and delivered it to Schlichtmann’s office that same evening. The “expedited” transcripts, as they were called, cost about a thousand dollars a week, depending on the number of pages of testimony. On top of that, there was the additional expense of ma
king eight copies for the Woburn families.

  Gordon believed he could go to Pete Briggs at the Bank of Boston for money one more time, but he was loath to do that until matters became truly desperate. Uncle Pete showed up at trial occasionally, and Gordon thought he had detected a change in the banker. Pete seemed more distant and aloof. “Something’s wrong with Pete,” Gordon told Schlichtmann one afternoon.

  “Is he upset by the way the trial’s going?” asked Schlichtmann.

  Gordon shook his head in puzzlement. “I don’t know what’s bothering him. He won’t tell me.”

  For the time being, Gordon put his hopes in settling a medical malpractice claim that Bill Crowley had been working on. The case concerned a thirty-five-year-old woman who’d gone to the hospital for a standard surgical procedure, a dilatation and curettage, to remove a benign growth on her cervix. Ten minutes into the operation, the woman, whose name was Helen O’Connell,* complained of difficulty in breathing and then lost consciousness. She awoke in the recovery room unable to move her legs. Over time, she regained sensation in her legs, but she continued to suffer from partial incontinence.

  Schlichtmann had settled a similar case several years ago for nine hundred thousand dollars. The damages in that instance had been more severe than Helen O’Connell’s, but all the same, Schlichtmann hoped to settle this new case for close to the same amount. Gordon awaited the settlement with impatience. The fee, potentially several hundred thousand dollars, would provide cash for operating expenses and enable him to make partial payments to creditors who’d already begun threatening legal action.

  On a rainy afternoon in late April, in the seventh week of trial, Crowley went with Mark Phillips to meet the insurance agents in the O’Connell case. They had decided to ask for eight hundred fifty thousand dollars. No one expected this initial meeting to result in a settlement. But the insurers would make a counteroffer, revealing their own assessment of the case value, and the size of that offer would indicate how quickly the case might resolve.

  Crowley and Phillips returned to the office around six o’clock. Schlichtmann spied them from his desk. He came to greet them in his stockinged feet. “How much?” he asked.

  Phillips, still wearing his raincoat, his lank blond hair damp on his forehead, lit a cigarette and reached for the phone on Peggy Vecchione’s desk. He punched the button for the direct line to Gordon on Newbury Street. Crowley shook out his umbrella and disappeared into his office. The secretaries all watched, waiting to hear what Phillips had to say.

  “How much?” asked Schlichtmann again.

  Phillips cradled the phone on his shoulder and looked at the ceiling. He took a deep drag on the cigarette.

  “Jesus Christ, am I invisible?” muttered Schlichtmann. At the top of his lungs, he screamed, “How much?”

  This time Phillips glanced at him, a sour look on his face. “One seventy-five.”

  Schlichtmann turned on his heel and went back into his office. Conway heaved a sigh and thrust his hands deep into the pockets of his pants.

  In the conference room later that evening, Phillips explained that the insurance agents had admitted liability. “They didn’t even want to talk about that,” said Phillips. But the agents also believed the surgeon’s claim that all of Helen O’Connell’s problems had cleared up. “I think it was a jive offer,” continued Phillips. “They’re testing us. They know we’re wrapped up in Woburn, they know we need the money.”

  Gordon groaned.

  They would have to send Helen O’Connell to a second urologist, continued Phillips, and perhaps even another neurologist, for a new round of complete workups. “If that doesn’t convince them,” Phillips told Schlichtmann, “we’ll have to put the case on the trial calendar for next fall and hope you’re finished with Woburn by then. We can’t sell out. We’ve got to settle for fair value or we won’t settle.”

  Gordon groaned again.

  After eight weeks of trial, the days in the courtroom had begun to blur into one another, like the countryside seen from a train window. A shaft of spring sunlight would find its way into the court and strike the brass lamp on the judge’s bench, a flash of brilliant yellow in the cavernous, gray, dismal room. The fluorescent lights overhead made everyone appear pale and sickly. Thick volumes of legal papers had grown on the counsel tables and more thick volumes lay underfoot in cardboard boxes on the floor. The lawyers’ overcoats, damp from a morning rain and smelling of wool, hung over the gallery railing. The radiators hissed gently. Distant, muted sounds of city traffic, a siren, an unmufflered truck, would float up into the courtroom from the streets fifteen stories below. The atmosphere felt heavy and dense. One of the alternate jurors regularly fell asleep. On particularly dull days, such as the one when Schlichtmann read Grace’s answers to interrogatories into evidence, Judge Skinner himself seemed to doze at the bench, the flesh of his cheeks slack and his mouth slightly parted, his head rolling back onto his chair.

  Facher always used to warn his students at Harvard that if they fell asleep at the counsel table, upon awakening they should come to their feet objecting. “In the time it takes to reach your full height, think of a reason for your objection.”

  Facher was being facetious, of course. He never really expected any of his students to fall asleep at the counsel table. But one day, eight weeks into the trial, Facher himself fell into a doze during Sandra Lynch’s slow and methodical examination of a Grace executive. He awoke when the microphone on the witness stand emitted a harsh squeal.

  “Perhaps we can fix the microphone,” suggested Lynch.

  “Mr. Nesson seems to have the touch,” said the judge.

  Facher came to his feet at the mention of Nesson’s name. “I object,” Facher said in a thick, cottony voice. Then he looked around, blinking his eyes, and sat back down.

  *A pseudonym.

  5

  On a morning in early May, Kathy Boyer opened the windows in the conference room for the first time since last fall, and there was fresh air in the offices of Schlichtmann, Conway & Crowley. Across from the courthouse, in Post Office Square, the tulips had burst into flower and the swollen buds on the linden trees had split open into a lacy green filigree of new leaves. Schlichtmann noticed that it was spring, but that didn’t cheer him. This part of the trial should have ended long before tulips.

  On the other hand, he was making progress. He had one final witness to call in this phase of the trial. This was his expert in hydrology and groundwater movement, one George F. Pinder, Ph.D. Pinder would testify against both Grace and Beatrice. He would, if all went well, make manifest the claim that TCE and other solvents on the properties of both defendants had indeed migrated to the city wells, and that the chemicals had gotten there before the leukemias and other illnesses began occurring.

  Schlichtmann felt fortunate to have Pinder. Every geologist who knew anything about groundwater had heard of Pinder. He was preeminent in his field, chairman of the civil engineering department at Princeton University and the person who, fifteen years ago, had developed the first computer model of groundwater flow. Schlichtmann put him up at the Ritz-Carlton, in a suite of rooms.

  Pinder was in his late forties, a dapper, diminutive man, nearly a foot shorter than Schlichtmann. His thin brown hair, as soft and silky as a baby’s, had receded high on the dome of his head. He wore gold-rimmed spectacles that made his round face look owlish and cerebral. He had a precise, methodical manner, but he was not in the least aloof or self-important. On the morning of his first day in court, he arrived at Schlichtmann’s office early and cordially greeted all the secretaries. Schlichtmann saw that Pinder was wearing a blue blazer, a woolly brown tie, brown pants and argyle socks. Schlichtmann always asked his experts to dress conservatively, in dark suits. To his eyes, Pinder was a sartorial nightmare, but he took it calmly. “George is the world’s leading expert on groundwater,” he told Conway privately before they left for court. “He can get away with dressing like that.”

  Pinder p
erformed ably on his first day, under direct examination by Schlichtmann. He came to the courtroom equipped with charts and diagrams to educate the jury in the science of hydrogeology. He set up a fish tank filled with kitchen sponges and placed drops of ink on the sponges. “Just think of each drop as being some event of contamination on the ground, entering our aquifer,” Pinder told the jury. He talked about saturated and unsaturated zones, capillary fringes, cones of depression. He held forth for the entire morning, confident, jaunty, and full of good humor, as if he were lecturing to a freshman class at Princeton.

  Both Facher and Cheeseman knew Pinder’s reputation. Two years ago, Cheeseman himself had tried to recruit Pinder as an expert witness for Grace, but he found that Schlichtmann had gotten to Princeton, and to Pinder, first. Facher wasn’t worried, though. “They tell me Pinder’s the leading expert on this subject,” remarked Facher out in the corridor, during the morning break. “They say he’s a home-run hitter in any ballpark. But he’s in my ballpark now.”

  Indeed, things did not go quite so smoothly after the recess, although that was no fault of Pinder’s. The closer Schlichtmann brought Pinder to implicating Beatrice and Grace, the more Facher and Keating began to object. Nevertheless, by the end of the day, Schlichtmann had gotten into evidence the first part of Pinder’s opinion—that both Beatrice and Grace were responsible for the contamination of Wells G and H. The second part, the arrival times of TCE and the other solvents, would have to wait until tomorrow.

  In the office that afternoon, Schlichtmann clapped his hands and danced on his toes in glee. “You got the opinion in, George!” he shouted. “They tried to stop you, but it didn’t happen. It was a great day, today, George! It could not have gone better!”