A Civil Action

by Jonathan Harr

  “They were very hostile,” Conway told Kiley and Crowley. “Eustis was a different person today. He blamed us for not settling before all the publicity. ‘If you’d settled then, you’d be rich men,’ he said. ‘Now you can recover your costs and you’ll be famous.’ ”

  “Keating was there,” said Gordon from the table. “But he hardly said a word. It all went downhill fast. We tried everything we could to keep it alive. I don’t think we missed a step.”

  Schlichtmann took off his suit jacket and stood at the window, staring out at the city. “It’s too bad they terminated the discussion.”

  “They did it by the book,” said Phillips. “Those bastards,” he added, muttering under his breath.

  “They’re not bastards,” said Schlichtmann, still looking out the window. “It’s the jury. For whatever reason, I lost them. They’re willing to support the system.”

  Gordon looked over at Kiley and Crowley. “Jan was so fucking good today. I’ve never seen him better. He brought tears to Eustis’s eyes when he told him what Patrick Toomey went through before he died. Eustis said, ‘It’s a terrible thing, but money can’t bring the boy back.’ Then he turned to Jan, almost like a father giving advice, and said, ‘It’s not worth it to go for broke. You can go to trial and risk losing it all. Or you can put a notch in your belt now and have plenty of business.’ Eustis said six point six million dollars is a lot of money. ‘You can declare victory with that.’ ”

  Schlichtmann walked over to the table where Gordon sat. He picked an apple out of a basket of fruit, courtesy of the Helmsley, and bit into it. There was a bottle of wine in the fruit basket, too. He picked up the bottle and studied the label.

  Gordon watched him. “It’s been an interesting case, a learning experience. I don’t feel nearly as egotistical as I used to.”

  Schlichtmann gave a short, abrupt laugh. “I concur with that.”

  From across the room, Kiley said, “We’ve got a problem, Jan. I think you’re ethically bound to tell the families about the offer. You’ve got a gross of almost a million dollars a family.”

  “We’ve got a problem,” agreed Schlichtmann. “The judge is going to start eliminating families on September fifth, beginning with the Zonas. Then he’ll try to get rid of the Kanes and Anne Anderson. He can destroy us.”

  “We’ve got to act fast,” said Kiley. “Let’s be realistic. Can we get ten million dollars and get out?”

  “The case is over,” said Conway with finality, hitching up his pants and walking in worried circles. “Our big win was the waiter last night.”

  Silence descended upon the group. They sat and paced around the garish hotel suite, with its satiny, rose-colored wallpaper and fake Louis Quinze chairs with gilded arms. Outside the window the city looked golden in the sunshine.

  “Those bastards,” murmured Phillips again.

  Schlichtmann sighed deeply. “I guess I got a choice. Using all my intelligence, do I see this case as hopeless? If I do, then I have to grab whatever money I can for the families. And a fee as a whoremongering attorney. But I’ll never allow my own financial pressure to rule what happens to the case.”

  Kiley scoffed at this. “Do you have an obligation to lose your house, ruin your health, your career, your mental outlook for this case? It boils down to dollars and cents, Jan. That’s what this is all about. You can get half a million dollars for these families and they can send their kids to college. You’ve got nothing to be ashamed of. To get half a million dollars in the hands of these people, that’s significant.”

  Schlichtmann opened the bottle of wine in the fruit basket and took a sip. He wet his lips and took another sip. “Good wine,” he said.

  Conway said, “Jan, win or lose, we’ve got to get this case behind us. We’ve gone as far as we can go. It’s over. It’s done.”

  Schlichtmann stood at the window and gazed out over the city. He seemed to have left the discussion and gone somewhere else in his mind.

  Kiley spoke to his back. He reminded Schlichtmann that when they flew back from New York a week ago, the day of the Good Morning America show, Donna Robbins could not even pay for the cab to Woburn. “This is a lot of money to these people. You think they’ll look at this as a loss? Half a million dollars?”

  “It’s hopeless, absolutely hopeless,” said Conway, his tie askew, his mouth set in a deep crease. “We cannot go to a verdict with this jury. You know that as well as I do, Jan. We can’t even go until September fifth because of the potential for the judge to destroy it all. It’s over, Jan.”

  Schlichtmann, still at the window, didn’t respond.

  Gordon looked at Phillips. “Is it over, Mark?”

  “Uh-huh,” said Phillips quietly. “Jan, the judge cut your balls off. There’s nothing you can do about that. We’re surrounded. It’s Pork Chop Hill.”

  “What happened at Pork Chop Hill?” asked Gordon.

  “They got wiped out.”

  “Yeah,” said Schlichtmann turning back to the group. “But they held the hill.”

  Gordon sighed. “What the fuck are we going to do? Do we have a medical causation case or not?”

  “They proved medical causation in Velisicol,” said Schlichtmann, referring to a recent decision in a Tennessee case involving residents who lived near a toxic waste dump and claimed a variety of health problems.

  Kiley laughed harshly. “They had three hundred thousand barrels of shit. The stuff was oozing out of their pores in Velisicol.”

  “We had six barrels at Grace,” said Gordon sadly, “and two of them were empty.”

  Schlichtmann laughed so hard that the wine he’d just sipped spewed from his lips. Conway looked at him, startled, and then Conway laughed, too. In a moment, Phillips joined in, and then Kiley. Everyone was laughing, a convulsing, cathartic uproar of laughter that lasted for a minute or more.

  “So,” said Schlichtmann at last, wiping the tears of laughter from his eyes, “we got blinded by greed. Nothing wrong with that. It’s our motivating factor. That, and the historical aspect. This was a political case. If it had just been a personal injury case, it would have settled a long time ago.”

  “Do you know what you want to do?” asked Conway, hoping Schlichtmann would agree that it was over, hoping he would settle the case and get it out of their lives.

  Schlichtmann considered this for a moment. “Nobody is in more pain than me,” he said at last. “Nobody wants to end it more than I do. But I’m not going to let it end just because I’m in pain.”

  Phillips said, “Would you take fifteen million right now?”

  “Sure,” replied Schlichtmann.

  “What bullshit!” cried Kiley. “We almost had a fistfight over these numbers. At fifteen million it’s a political cause and at eight million it’s a personal injury case?”

  “So what do we do between now and September fifth?” Conway asked. “I don’t mean paying the bills. I mean the work, the experts. Do we go ahead with that?”

  “We’ve got problems,” said Gordon. “There’s the office staff. People’s lives are at stake. We got to prepare for phase two. We can’t negotiate without being prepared. Things are not black and white.”

  Phillips grimaced at Gordon. “Don’t get philosophical on me now. It’s out of character.”

  But Gordon hadn’t finished his litany. “The fucking computers are going to be repossessed on Monday.”

  Schlichtmann looked at Gordon with genuine surprise. “Really?” he said.

  Gordon nodded. “Does unemployment insurance cover people who’ve been laid off?”

  “Have we been paying it?” asked Conway.

  Gordon shook his head. “I don’t think so.”

  Conway said, “Even eliminating the office staff doesn’t solve our problems. We’ll still have to pay for transcripts.”

  “Are we in fucking fantasy land or not?” said Gordon. “No payroll taxes have been paid at all.”

  Schlichtmann said quietly, “It would have been be
tter if they hadn’t made us any offer.”

  Conway went into the bedroom to pack. After a few moments Schlichtmann followed him into the room, still carrying the glass of wine. Conway hefted his suitcase on the bed and took off his suit jacket and folded it. Schlichtmann, his arms crossed, leaned against the door and watched him, saying nothing.

  “It’s over, Jan,” said Conway as he packed. “If we go on, it will destroy us all. We’ve got to stop it now.”

  Schlichtmann still didn’t say anything. He shrugged and then turned and left.

  Conway watched him go. He knew the case wasn’t over until Schlichtmann said it was. When Schlichtmann was out of earshot, Conway said, “He’s willing to take everything a step further than anybody else. God knows, he loves the edges. If he decides to go to trial, I’ll be there. But I hope he doesn’t. God, I hope he doesn’t.”

  The tropical heat of the day gave way to rain squalls and a dark and turbulent sky. At La Guardia Airport that evening, the shuttle to Boston was delayed because of tornado warnings. As Michael Keating remembered it later, he was standing in the crowded waiting room with hundreds of other stranded travelers. Then, across the room, he spotted Schlichtmann’s tall, angular form. Keating had no desire to talk to Schlichtmann. He grabbed his bag and pushed open a small door in the back of the terminal. He thought he had gotten away unnoticed, but then he heard Schlichtmann’s voice behind him calling, “Mike! Mike!”

  Keating stopped and turned to confront Schlichtmann. They stood next to a garbage bin, foul-smelling and dripping from the squall that had just passed.

  Schlichtmann said he regretted that the negotiation had ended the way it did.

  “I thought it ended just where it should have,” replied Keating.

  “We have to keep talking,” continued Schlichtmann. “You can’t just have ultimatums. You’ve got to have a process.”

  Keating listened but said little as Schlichtmann went on talking about how important the “process” was and how they had to find a way to resolve this case to their mutual benefit. “Let’s get together on Monday morning in Boston,” Schlichtmann said, “and have a heart-to-heart.”

  Keating couldn’t agree to this without notifying Eustis first. He told Schlichtmann he would call him on Monday and let him know. They parted without shaking hands.

  Keating walked across a parking lot and into another terminal. He was puzzled. Only a few hours ago he’d felt certain that the case would not settle and Schlichtmann would go ahead with the second phase of trial. He had taken careful notes when Schlichtmann described what had happened to Patrick Toomey, certain that he was getting a preview of Schlichtmann’s opening argument. And to Keating, it promised to be a powerful one.

  Keating found a phone booth and looked up Eustis’s home number in Scarsdale. Eustis’s wife answered the phone. Keating explained who he was. A moment later Eustis came to the line. Keating apologized for calling him at home. “I just ran into Schlichtmann at the airport, and I thought you ought to know about it.”

  “No problem,” said Eustis.

  Keating related the substance of his conversation with Schlichtmann, and then he said, “I’ve never seen anyone so desperate to settle. I don’t know what’s driving him, whether they’ve run out of money or what.”

  Eustis thanked Keating for calling. “Let’s see what happens next,” Eustis said.

  3

  Back in Boston, the chasm of the weekend loomed before Schlichtmann. On Saturday evening, as the sun set over the Charles River and small boats sailed in the Back Bay, he lay on the bed in Teresa’s apartment. His mind churned. He knew he had to start preparing for the second phase of trial. Details crunched through his brain as he examined the possibilities and pitfalls, a chess game of enormous complexity. Twenty thousand pages of depositions to think about, tens of thousands of pages of medical records and test results. Have I looked at Colvin’s second deposition? he thought. Has Lappe talked with Conibear? Has he talked with Paigen? The T cell assays, the Harvard health study, Cohen’s electrocardiograms, Feldman’s blink reflex studies. An endless, treacherous swamp of detail and evidentiary problems. How many expert witnesses? Twenty, perhaps more. It made the first five months of trial look like a law school exercise in comparison.

  Teresa came to the door and asked if he wanted dinner. He said he wasn’t hungry. She made a light meal of omelettes anyway. He ate it like a man famished and asked what else she had. In the freezer, she found a frozen pizza. “I don’t want that. It’s poison,” he said. She heated up the pizza anyhow, and he consumed it all, along with half a bottle of beer. He lay on the bed, holding the remote control for the television in his hand, flicking endlessly through the channels, never pausing for more than a few seconds.

  Teresa was in the kitchen when she heard him calling. His voice was urgent and he sounded frightened. She ran to the bedroom. He lay with his legs spread apart, his feet dangling off the end of the bed, one hand on his chest. “I think I’m having a heart attack, I have this intense pressure in my chest, I can barely breathe.”

  She felt his pulse, which was rapid but strong. “You’re having an anxiety attack,” she said. She had a prescription for Valium in the medicine cabinet. She broke one of the pills in half and brought it to him. “Take this,” she said. “It’ll make you feel better.”

  “What is it?” he asked. She told him and he refused to take it. “I’ve been drinking. It’ll make me hallucinate.”

  “Jan, that’s nonsense. You’ve only had half a beer.”

  She thought that if he didn’t take the pill, she would. In the kitchen, she poured the remaining beer into his glass and dropped the pill into it. She used a spoon to crush it. He drank the beer without suspicion. Within half an hour his pace on the television remote control began to slow, and soon he fell into a heavy sleep.

  On Monday morning, August 11, Schlichtmann went to the coffee shop at the Meridien Hotel, across from the federal courthouse, to meet Keating. Schlichtmann told Keating that he wanted to make settlement a “positive” event for W. R. Grace. Keating asked why he would want to do that, and Schlichtmann replied, “Because I’m more successful if I’m perceived as someone who can turn a company’s worst nightmare into a positive event, instead of one who wages war.” Keating said that Eustis viewed any settlement—especially a large one—as tantamount to an admission of guilt. The jury had returned a verdict against Grace, and paying money now would make it look as if Grace accepted that verdict. Furthermore, Eustis was concerned about the “shark effect.” A big settlement would induce other personal injury lawyers to seek clients in Woburn and file dozens of lawsuits, hoping to settle for a lot of money.

  These arguments all made perfect sense to Schlichtmann, who saw in them opportunity, not obstacles. Money, he deduced, was not Eustis’s foremost concern. How the settlement was perceived—its presentation to the press, and its success in averting future Woburn lawsuits—these issues were more important to Eustis than money.

  What if, Schlichtmann suggested to Keating, he could put together a settlement package that would guarantee peace in Woburn?

  Peace in Woburn? Yes, Keating thought that might interest Eustis.

  “Is it conceivable,” said Schlichtmann, “that there is a figure between yours and mine that might take care of my needs?”

  “It’s conceivable,” replied Keating. But Eustis was on vacation now, out sailing solo on Long Island Sound. He could not be reached, and he would not be back at work until next week.

  Throughout that week, Schlichtmann conferred with his partners. A new settlement strategy began to take shape. On September 5, when they went before the judge, Keating would file a motion for a new trial. Keating would ask the judge to vacate the verdict on the grounds that it was against the weight of the evidence. Schlichtmann would consent to this motion. He would let the judge know that his consent was part of a settlement agreement. A new trial would make it look as if Grace wasn’t really guilty. They could even have th
e families say to the press that Beatrice and chemical companies in north Woburn were responsible for the contamination of the wells.

  Kiley liked this idea. “I think it’s a great strategy. We’ll give them anything they want as long as they give us twelve million dollars.”

  But Conway was not optimistic. He believed that all Eustis cared about was the money. “It’s very clear. Eustis is afraid that if the number is too high, it’s going to create a shark effect. All these other things are just red herrings. Either they care about them or they don’t. And I don’t think they care.”

  “Yes, they do,” insisted Schlichtmann.

  Conway was unconvinced. “What if all this stuff is fantasy and they’re not going anywhere but six point six million?”

  “Then it’s not going to settle,” said Schlichtmann simply, as if he were merely stating the obvious. “We’ll go to trial.”

  A moment of silence followed this statement.

  At last Gordon said, “We’re in a bit of a pickle.”

  “I think we’re in real trouble,” said Conway slowly.

  Schlichtmann looked at his partners. “The money cannot be taken, not six point six million,” he said in a level voice. “I cannot take fees and expenses out of that and go to the families empty-handed and say, ‘Thanks for the privilege of representing you.’ ”

  They talked off and on all week, adopting and discarding strategies. The pattern was familiar, a pattern of despair followed by hope and renewal, followed once again by despair. Schlichtmann called Keating and waited several days for Keating to call back. When Keating finally did call, on Friday morning, he left word that he was not authorized to engage in any further discussions until Eustis returned from sailing.

  That afternoon, Conway was in his own office, talking with one of the associates, and the secretaries were gathered in the kitchen for a coffee break when the sounds of loud banging and the thud of heavy articles hitting the floor came from Schlichtmann’s office. These sounds were followed by screams. “Save me! Save me! I’m self-destructive! I always knew that!”