Schlichtmann didn’t have the time or presence of mind to think through these questions right now. He had to get out to Woburn and meet with his clients. At the office, a small caravan assembled to make the trip. Schlichtmann went with Kiley in Kiley’s Mercedes. On the drive out, he sat in the passenger seat, staring rigidly ahead and saying nothing. Kiley gave him a worried glance.
“This ‘bitterly disappointed’ shit has got to stop, Jan,” said Kiley.
Schlichtmann managed a wan smile. “No self-pity, huh?”
“You don’t think Keating is celebrating, do you?” Kiley continued. “W. R. Grace is damn sorry they ever ran into you. They’ve just been found guilty of polluting the water in a town where there’s a fucking cancer cluster! You’ve got to turn the screw, Jan. You can’t let up now.”
Schlichtmann drew a breath that sounded like a sob. “I’m sorry,” he said, his voice hoarse. “I’m filled with pain. Month after month, nothing has ever been clear. I needed those jurors. I needed those six people. They kicked me in the fucking belly. They think I’m wrong.”
Kiley looked grim. “Jan, you’ve got to get hold of yourself. You can’t let your clients see you this way.”
In the meeting hall at Trinity Episcopal Church, the families gathered around on folding chairs. Overhead, the high ceiling fans turned slowly but gave no relief from the oppressive midsummer heat. People fanned themselves with pieces of paper and mopped their brows with handkerchiefs.
Schlichtmann looked hollow-eyed and he spoke in a dull, uninflected voice, but he did manage to keep hold of himself. He told the families he would appeal the Beatrice verdict. As for Grace, the jury’s answer was puzzling. He did not understand how they had arrived at the date, and he needed time to study it. But he assured the families that they were still all in the case together. He would try to find a way around the date. And if that failed, he could still prove that exposure to the solvent had aggravated the illnesses of Jimmy Anderson and the others and hastened their deaths. These words of assurance relieved those families whose claims were in jeopardy. But even so, they all knew that this argument looked weak compared with what they had started with.
Back at the office, the secretaries brought out the bottles of champagne that they had been saving in anticipation of a victory celebration. Schlichtmann popped open a bottle as soon as he walked in the door and took a deep swallow. In the conference room the television was tuned to the early news. Telephones rang constantly with calls of congratulations and queries from reporters. “No, we’re not disappointed at all,” Kiley explained to a Washington Post reporter who had seen Schlichtmann’s interview in the courthouse lobby. “He was just reacting to the moment.”
Phillips heard that W. R. Grace stock had fallen three points by the close of the market. He called to confirm this, and then he came to tell Schlichtmann. Phillips calculated that the verdict had cost Grace stockholders $155 million. The wire services and CBS network news were calling the verdict a “landmark decision.”
Gordon looked amazed. “If The Wall Street Journal says we won tomorrow, then I’ll believe we won.” He paused. “It doesn’t feel like it, though.”
In the kitchen, Conway waited for the coffee machine to percolate. Phillips came in and sat astride a stool. He lit a cigarette and took deep drags. The kitchen was cluttered with half-empty glasses of champagne, half-empty cans of soda, and ashtrays full of cigarette butts.
“We’re in worse shape than we ever thought with this jury,” said Phillips, clearing his throat and humming nervously. “We’re lucky we got today.”
“I think we’ve sent a message,” said Conway, buoyed by the press reports. “Grace has still got punitive damages hanging over them. It’s a case that’s got—”
“It’s a case that’s got to be settled quickly,” interrupted Phillips. “We’ve got to save our dignity and get out of this case as fast as we fucking can. That’s the only strategy left.”
“How much do you think we can get?” wondered Conway.
Phillips thought for a moment. “Twenty-five million.” He hummed. “If we’re really lucky.”
In his office, Schlichtmann was taking telephone calls. Good Morning America wanted him to come down to New York and appear on the show the next morning with one of his clients. Schlichtmann accepted the invitation and called Donna Robbins in Woburn. He told her to meet him at the airport that evening at seven-thirty. Kiley decided to accompany Schlichtmann. He knew that Schlichtmann had no functioning credit cards and no way to pay the plane fare and hotel bill.
Rikki Klieman came by the office, looking sleek in a tan summer suit, her luxuriant dark brown hair shining with health. She had sent flowers to the office earlier, a gesture that could be read as either congratulations or condolences. “How’s Jan doing?” she asked Conway.
“Not good,” replied Conway.
“Somebody’s got to talk to him,” said Rikki.
“He’s going to New York to be on Good Morning America. Go with him. Help him out.”
“I haven’t been invited.”
“Just go,” said Conway.
Rikki walked into Schlichtmann’s office. He was packing his overnight bag for the trip. “Jan, do you want me to go with you?” she asked.
Schlichtmann looked at her with blank eyes. “Sure, come on,” he said in a flat voice.
Rikki was skeptical. “Are you serious? Really?”
Schlichtmann nodded.
Rikki left to pack a bag of her own. After she’d gone, Conway went into Schlichtmann’s office and closed the door behind him. “If you think we lost, so will everybody who sees you on television tomorrow morning. Don’t do that to us, Jan. Promise me you won’t do that.”
At the airport, Schlichtmann introduced Donna Robbins to Rikki Klieman. “Rikki’s a very close friend and a good lawyer,” he told Donna. “She’s been very supportive.”
They boarded the eight o’clock shuttle to New York. Schlichtmann sat in an aisle seat with Donna next to the window. Rikki Klieman and Tom Kiley sat together across the aisle and two rows back. Donna felt jittery. She had a deep-seated fear of talking in public, of becoming tongue-tied with anxiety. The prospect of appearing live on Good Morning America mortified her. In other interviews and public appearances, Schlichtmann had always given her advice about what to say and assured her she’d do fine. But now, on the plane, she found Schlichtmann eerily quiet. She would say something and he’d nod in response but say nothing. She realized after a while that he had not uttered a single word since the plane took off.
“Jan, are you all right?” Donna asked. He made a sound of assent and nodded his head. Try as she would, Donna could not get him to say a word. She’d never seen him—she’d never seen anyone—act like this before, and it frightened her.
Schlichtmann heard Donna talking, asking him questions, but her voice seemed to come from a great distance. He could not respond. He wanted to, but he was afraid that if he opened his mouth he would wail. His breathing was rapid and shallow. He felt confined on the airplane as he had never felt confined before. His clothing seemed to suffocate him, and every moment lasted an eternity. He craved immersion in warm water. He had the bizarre sensation that if he could just unzip his skin and get into warm water, he would be all right. He imagined a zipper on his chest, from the base of his throat to his navel. The urge to unzip himself became so compelling that he feared he would stand in the aisle of the plane and take off all his clothes. Again he heard Donna, but he stared straight ahead. He found himself thinking, Maybe the plane will crash and this nightmare will end.
Two rows back, Rikki Klieman could see Schlichtmann sitting rigidly erect and immobile in his seat. She turned to Kiley and said, “I know what he’s thinking. He thinks he’ll be better off if this plane crashes. He wants this plane to crash.”
When they landed in New York, Kiley took charge. He summoned a cab to Manhattan. He decided that Schlichtmann was in no shape to spend the evening with a client. At the Barb
izon Hotel, Kiley escorted Donna to the check-in counter, paid for her room, and told her they would pick her up tomorrow morning at six-thirty. Then Kiley returned to the cab and told the driver to go to the Helmsley Palace. At the check-in counter there, Kiley paused. If Rikki had not come, he and Schlichtmann would have shared a suite. Now Kiley was unsure what arrangements he should make. Three rooms or two? He looked at Rikki, eyebrows raised in question. She shrugged. Kiley booked two rooms.
They got off the elevator on the nineteenth floor. At the door to the first room, Schlichtmann motioned to the bellhop to bring in his and Rikki’s luggage. Kiley went on to the second room alone. He returned a moment later and said he was going downstairs to Harry’s Bar for a drink and something to eat. Did they want to come?
Harry’s Bar, with its dark, richly oiled wood and gleaming brass, was still noisy and convivial at eleven o’clock. Kiley found a table and steered Schlichtmann to it. They ordered drinks and sandwiches, and he and Rikki set about the difficult task of trying to make Schlichtmann feel better. Schlichtmann drank steadily but ate nothing. Kiley attempted to coax him out of his catatonic state. He asked Schlichtmann what he planned to say tomorrow on Good Morning America. Schlichtmann just shook his head sadly and made no reply. For an hour, Kiley and Rikki talked to him, tried to comfort him, tried to reason with him. Kiley treated him with a tenderness, a patience and solicitude, that impressed Rikki. She had not heretofore thought of Kiley, with his South Boston accent, his thickly muscled build and blunt manner, as especially sensitive.
It wasn’t until after midnight that Schlichtmann finally began to talk. People had believed in him and he had failed them. He shouldn’t have become a lawyer. He did not have the strength to continue. His life was over, he said, and this statement, more than anything else, alarmed Rikki.
Then he again became silent. Rikki wondered if he’d be able to go on Good Morning America at all. Kiley, thinking the same thing, decided he ought to prepare himself to take Schlichtmann’s place in the morning. Kiley made one last effort. “Your life may be over, Jan, but tomorrow at seven o’clock you’ve got to get on national television and you’ve got to say something.”
Finally Rikki got up and said she was going to bed. Schlichtmann stood, too. They left Kiley at the table and went upstairs to their room. Schlichtmann undressed and lay naked under the sheets. Rikki came to the bed and lay down beside him. In the dark, she talked to him for what seemed a long while. She stroked his arm, and then she made love to him. After a while, she drifted off to sleep.
Schlichtmann lay awake. He could feel the rapid pounding of his heart, his body moist with perspiration even in the air-conditioned room. At three o’clock he arose, went into the bathroom and stared at himself in the mirror. He thought he had aged a decade in the last week. His hair was mostly gray now. His eyes seemed sunken in their sockets, full of terror and dread. His head pounded and his mouth felt clotted from the drinks at Harry’s Bar, from the bottles of champagne at the office. He had not eaten anything for almost twenty-four hours. He returned to the bed but could not sleep. He lay next to Rikki, listening to her regular, quiet breathing. He waited for morning.
At five o’clock, in the gray light of dawn, he got up again and went to take a shower. He stood for a long while, letting the warm water pour over him. And then, slowly, he started to feel better. It became clear to him what he had to do next. He had hoped for a jury that would embrace the “political” nature of the case. But he realized now that he could not depend on this jury to ring any bells in the corporate boardrooms of America. The case that he had tried to turn into an environmental crusade, the case that he had hoped would bring him fame and fortune, had suddenly turned back into an ordinary case again.
At that moment this felt like a profound revelation to him. His grief at losing Beatrice had blinded him to everything but his own pain, but now he was beginning to see again. Faced with this jury, he did not have many choices. He would have to try to settle with Grace. Maybe he could get enough money to call it a victory. That, he decided, was his challenge now.
He emerged from the shower feeling clearheaded for the first time in a week, as if he’d slept well that night.
At the Barbizon Hotel, Donna Robbins had not slept well. She kept rehearsing what she wanted to say on television the next morning and hoped that she wouldn’t freeze up when the moment came.
She was waiting in the lobby of the Barbizon at six-thirty when Schlichtmann came in to pick her up. She asked how he felt and he said, “I feel great today.”
Donna could see the change in him. He did look better, and he was acting much more like his old self. In the taxi on the way to the ABC studios, she sat in the back with Kiley and Rikki. Schlichtmann sat in the front and kept turning around in his seat to talk with her. When she told him how nervous she felt, he tried to quell her fears. Then, a block away from their destination, he became quiet again, but it wasn’t the same sort of eerie quiet as on the airplane.
Donna later remembered her brief appearance on Good Morning America as an embarrassment, the sort of memory that makes you catch your breath in shame when it sneaks into your thoughts. In truth, she did fine. She was dressed in a light summer skirt and a sleeveless white blouse, and she appeared calm and dignified, almost serenely beautiful, as she sat on a studio couch next to Schlichtmann. The first few minutes of the interview, when she talked about Robbie and his illness, went smoothly and she started feeling more at ease. The show’s host, David Hartman, asked her what she hoped to gain from the lawsuit, and this was a question for which she had carefully prepared. “I think there’s three things,” she began. She got through the first—that corporations would be more responsible with toxic waste as a result of the lawsuit—and then she lost her train of thought. She glanced quickly at Schlichtmann. She looked down at her lap and bit her lip. “I’m sorry,” she said, “I’ve just drawn a mental blank.”
David Hartman murmured, “That’s okay,” and deftly turned the same question to Schlichtmann. During the commercial break that followed, Hartman took Donna’s hand in his and smiled gently at her. “Don’t worry about it,” he said. “I’ve done it myself, and I’ve seen it happen more times than you could imagine.” Donna felt enormously grateful to the man for this small gesture.
For his part, Schlichtmann didn’t disappoint Conway. He looked pale and tired, but he uttered with conviction the standard phrases of victory, sentiments he did not at all feel. He was “pleased and heartened that the jury had the courage to find W. R. Grace responsible,” and he looked forward to “presenting the evidence of what happened to the community” in the second phase of the case.
When their plane landed in Boston that afternoon, Schlichtmann escorted Donna to a cab and told the driver to take her to Woburn. Donna said she didn’t have enough money for the fare. Schlichtmann glanced over at Kiley, who took out his wallet and handed Donna a twenty-dollar bill.
Schlichtmann shared a cab with Rikki and Kiley to downtown Boston. After dropping off Kiley, Rikki hoped Schlichtmann would say something about the night they’d spent together, but she could see that romance was far from his thoughts. The cab stopped at his office on Milk Street. Schlichtmann got out, and then he leaned back into the taxi and thanked her for coming with him. He turned and ran in loping strides up the stairs to his office.
Rikki would recall some months later exactly what passed through her mind at that moment. “My only thought as Jan got out of the cab was, That was a great night for me and he’ll never remember a minute of it.”
The Negotiation
1
Schlichtmann and his partners sat around the conference room table. They kept the doors to the room closed and the Venetian blinds on the windows lowered. For three days they took no phone calls, returned no messages, and answered none of the registered letters that arrived every morning from creditors. They had sandwiches and trays of cold cuts brought in for lunch. The air-conditioning unit in the window chattered away,
but still it grew warm in the room. The seven men shed their suit coats and rolled up their shirtsleeves. Nesson, the only member of the team missing, was on vacation with his family.
They took stock of their situation. They could go forward and begin the medical phase of trial, but the judge would probably dismiss three of the leukemia death cases because of the date the jury had given. And the jury was clearly divided. “That turns the next phase of trial into a real gamble, a roll of the dice,” Schlichtmann told his partners. On top of that, their financial position was precarious in the extreme. Gordon had just cashed in the firm’s retirement plan. He thought he could get them through another three months, until October. Beyond that, Gordon foresaw only disaster.
Their only sane option, as Schlichtmann had realized after his sleepless night in New York, was to try to settle with W. R. Grace now, before the judge began dismissing leukemia claims. But to negotiate a settlement, they had to be prepared to go ahead with the trial. Grace had to believe they were willing to go ahead, and for Grace to believe that, they had to make themselves believe it, too. “You can’t settle without a commitment to going on,” said Phillips.
“It’ll mean putting me in a rowboat and setting me adrift for six months,” said Schlichtmann. “With some suits,” he added.
Grace, they reasoned, had an incentive to settle. In September Keating would face the same jury that had already handed his client one loss. This time the testimony would be about dead children, not groundwater movement. “Grace did lose,” said Gordon. “The fuckers did lose!”
A Civil Action Page 45
