A Civil Action (42 page)

There was, it seemed, no question that Jacobs—and hence Facher—were genuinely interested in settling the case against Beatrice. Schlichtmann told Jacobs that the only way to bridge the gap between them was to talk about their respective positions.

Jacobs said that there was no time for that. It was Thursday afternoon now. The trial was about to start on Monday morning. “You’ve got to give me your bottom line,” said Jacobs.

Schlichtmann shook his head. “It never works that way. My bottom line will always be too high, and your top will always be too low.”

Jacobs left the room again. When he returned, he had another proposal. He told Schlichtmann he was not authorized to make this offer yet. “But if you accept it, I’ll see if I can get it. It’s in the vicinity of a million dollars per family. Is that in the ballpark?”

In spite of all the talk about billion-dollar settlements and “astronomical” verdicts, this was an offer that Schlichtmann had to consider carefully. His firm was deeply in debt. He could use the Beatrice money to finance the trial against Grace, and at the same time put a substantial sum into the hands of the families. Furthermore, getting rid of Beatrice also meant getting rid of Facher, who had proven to be his strongest adversary. Without Facher to complicate matters, the trial against Grace would no doubt be simpler, and probably clearer and more compelling for a jury of ordinary citizens.

Then again, thought Schlichtmann, it wasn’t as if he had no case against Beatrice. The land
was
contaminated with TCE, and he could prove it. True, Riley had claimed at his deposition that he had never used TCE, but Schlichtmann was convinced that Riley had been lying. He had learned from that encounter that Riley was a man of violent and
erratic temper. Back then, Schlichtmann had told himself that when he finally got Riley on the witness stand in front of a jury, he’d taunt the old tanner into losing his temper, and perhaps even exposing his lies.

Maybe Jacobs and Facher were afraid of this very thing. Whatever the reason, Jacobs was obviously worried. After all, he had initiated this discussion. He had offered four million, and then, within a matter of minutes, he had doubled his own offer.

That afternoon, as Mary Allen left for the airport, Schlichtmann promised Jacobs that he would call back that evening with a final figure, one “cut to the bone.”

At the office, he and Conway and Gordon debated what to do. Schlichtmann wondered if he was ethically obliged to inform the families of Jacobs’s offer. Doing so might create problems. What if some of the families wanted to take the money and others insisted on going to trial?

But Jacobs had not actually offered eight million dollars—he’d said only that he would “try” to get it. Moreover, the negotiation was still going on. Schlichtmann owed Jacobs a call.

For the moment at least, Schlichtmann decided to discuss the matter only with his partners. They talked into the evening before they decided upon a sum. In his office, with the door closed and Conway, Gordon, and Crowley sitting around his desk, their eyes all on him, Schlichtmann made his call to Jacobs. “The figure,” he said into the phone, “is eighteen million.”

Schlichtmann listened for a moment, and then hung up the phone.

“What did he say, Jan?” Gordon asked.

Jacobs had thanked him, replied Schlichtmann, and said he would call back with a response.

Schlichtmann expected Jacobs to call on Friday, but Jacobs didn’t. He waited over the weekend, expecting to hear from Jacobs at any moment, but Jacobs never called back.

The Trial

1

Schlichtmann stood silently in the well of the courtroom, facing the six jurors and six alternates. He wore his charcoal-gray suit with the faint pinstripes, his lucky suit, and a new red Hermès tie that Teresa had given him. He stood before the jurors, but he didn’t look at them. His head was bent, his gaze fixed on the floor, his left hand cradling his chin as if he were deep in thought, his tall, slender form a study in angles.

Opening statements in well-publicized jury trials are among the law’s more theatrical moments. A moment ago, Judge Skinner had taken the bench and peered out at the gallery, where people sat wedged on the long pews like subway commuters at rush hour, briefcases, coats and purses perched on their knees. More people stood at the back of the gallery and along the walls between the tall marble columns. “We can’t have standees,” the judge had said. “Those of you who can’t find seats, I’m going to ask you to leave.”

Two hundred spectators remained, seated in rows behind the stout oak railing that separated them from the well of the courtroom.
Reporters and courtroom sketch artists from television had the best front-row seats. Behind them, among the sea of faces, was Schlichtmann’s mother, her gray hair freshly coiffed, and Kathy Boyer and Teresa and, several rows distant, Rikki Klieman. Uncle Pete was there, keeping an eye on his collateral, and Gordon and Phillips and their wives, and everyone else from Schlichtmann’s office, down to the part-time receptionist. And so, too, was Reverend Bruce Young, in a worn black suit and white cleric’s collar. An entourage of dark-suited W. R. Grace executives from corporate headquarters in New York claimed several excellent seats near the front of the gallery. Among them was the Grace general counsel, a trim, handsome man in his mid-sixties with a full head of white hair. Across the aisle from him sat his counterpart at Beatrice Foods, Mary Allen, just in from Chicago. Even one of Facher’s daughters had come to hear her father in the biggest case of his long career.

The only faces missing from this crowd were those who arguably had the greatest interest in the progress of the case. Schlichtmann had prevailed upon his clients, the Woburn families, not to attend the trial. This had been a tactical consideration. The entire trial, both phases, would surely last several months and if, sitting in the gallery, they should laugh or smile at the wrong time, or look bored, or come only sporadically—well, he’d asked them, think what impressions the jurors might form.

The night before, Schlichtmann had not slept at all. Teresa had stayed with him, and when she fell asleep at midnight, Schlichtmann had been making notes in the margins of his speech. At four A.M., she had awakened to find his reading light still on, his voice a low murmur as he rehearsed.

In the courtroom the old steam radiators hissed and emitted a prodigious heat. The audience seemed to hum with anticipation, a susurrus of excited voices. The sound quickly faded away when Schlichtmann rose from the counsel table. But still Schlichtmann waited, looking at the floor. He waited for such a long moment that his friends in the gallery began to worry.

At last, he took a deep breath and looked up at the rain-streaked windows above the jury box. “Ladies and gentlemen of the jury,” he began in a low voice. “There’s a city north of Boston. The name of that city is Woburn. Woburn is like many other cities. It has homes,
schools, churches, industry. But Woburn has something else. It has more than its share of sickness and death.”

He spoke to the jurors as if he were alone with them, the way two people can be alone in a crowded public park. His notes were at the counsel table, a few paces to his right where Nesson, Conway, Crowley, and Kiley sat, but he never paused to look at them. He told the jury about the tragedies the Woburn families had endured, and then, the tone of his voice growing harsher, about W. R. Grace and Beatrice Foods. He would prove, he said, that these two companies had dumped toxic solvents on the ground, and that these solvents had been drawn into the city wells and then pumped into the homes of east Woburn. “Industrial waste has been dumped by corporations that didn’t care, by corporations that knew what they were doing could hurt people. But these corporations chose to do it anyway.”

When Schlichtmann was done, the crowd in the gallery remained quiet for a long moment. Judge Skinner broke the spell by calling a brief recess. The crowd, elbow to elbow in their seats, seemed to let out a collective breath, and began talking among themselves as they shuffled out to the corridor. Schlichtmann sat at the counsel table, his back to the gallery, his face flushed. His partners gathered around him, touching him on the shoulders and smiling.

The counsel tables—there were three, one for each party—were arranged in such a way that the lawyers for the two defendants sat behind and to either side of Schlichtmann, counsel for Beatrice on his left shoulder, Grace on his right. Next to Facher at the Beatrice table, Jacobs paused to watch Schlichtmann receive congratulations. Then Jacobs followed the crowd out into the corridor in search of Mary Allen. He found her smoking a cigarette by the pay phone.

“My God,” Mary Allen said to Jacobs. “He accused us of
murdering
children! What the hell are we going to say to that?”

Schlichtmann’s speech had unnerved Jacobs, too. He would recall later that he could “almost hear the jurors’ minds snapping shut.” But he did not say this to Mary Allen. “Just wait,” he reassured her. “This was Schlichtmann’s finest moment. From here on, it’s all downhill for him.”

It is in the nature of disputes that a forceful accusation by an injured party often has more rhetorical power than a denial. Partly for that reason
the opening statements—the denials, as it were—made on behalf of W. R. Grace and Beatrice Foods struck many observers in the gallery as anticlimactic.

A lawyer named Michael Keating, one of Cheeseman’s partners, gave the opening statement for Grace. Cheeseman sat at the Grace counsel table, but he was no longer in charge of the conduct of the case. The firm had turned that job over to Keating. Cheeseman didn’t mind. Quite the contrary, he had welcomed Keating, a friend and fellow Harvard Law graduate who was also the firm’s most experienced trial lawyer. Keating had a wonderful courtroom voice. It was strong and clear and resonant, a forthright, honest voice of the sort that seemed incapable of whispering secrets or bearing falsehoods. Standing before the jury, Keating frankly admitted that yes, some Grace employees had spread small amounts of TCE on the ground to evaporate—
but
it was just small amounts and it had
never
gotten to Wells G and H, and he, Keating, promised he would prove that to them. And even if it had gotten there, it could not possibly have caused anyone any harm, and he would prove that, too. There wasn’t much more that Keating could say, except to reply to Schlichtmann’s accusation that Grace did, too, care.

For those in the cramped seats of the gallery, Keating’s opening statement was mercifully brief. Facher’s was not. Facher stood before the jury and patted the pockets of his suit coat as if he’d just discovered that he’d lost his keys. He fixed his gaze on the high vaulted ceiling of the courtroom and turned his head slowly as if he were following the flight of an insect. He often looked squarely at the judge as he spoke, but rarely at the jury. When he tried to erect a large map of Woburn on an easel, he almost toppled it back onto Jacobs and Frederico. And when he finally got the map in place, Judge Skinner interrupted him. “Turn it so the jury can see it,” the judge ordered. “You’re talking to them, not me.”

It wasn’t that Facher had no points to make. Schlichtmann had no proof, Facher told the jury, that the Beatrice tannery had ever used TCE, or had ever dumped toxic waste of any kind on its fifteen acres. It was true, he acknowledged, that the land was contaminated today, but there was “not one single piece of scientific evidence” that it had been contaminated in the 1960s and 1970s, when the wells G and H were pumping water into the homes of east Woburn. Moreover, no doctor had ever suggested that the chemicals in the well water could cause leukemia, not
until Mr. Schlichtmann found an expert to say so, “a California doctor, a professional expert” who had testified “dozens of times.”

It appeared that Facher had said everything he intended to say. He had spoken for an hour and a half, but he seemed reluctant to sit. He had worked hard to prepare his opening. He had rehearsed on the way to work for the past week, bundling himself in a heavy winter coat and a snap-brimmed cap with the earflaps pulled down, walking from his apartment in Arlington to Harvard Square, a distance of three miles—a small, gray, undistinguished-looking figure with a lugubrious face, talking to himself. It wasn’t a bad speech, but now, in the courtroom, as he said for the third time that the tannery had never even used TCE, the crowd in the gallery shifted in their seats.

Facher knew he was not a skilled orator. He did not even like the sound of his own voice, which he knew became more nasal and mumbly the louder he tried to speak. But he had won most of his cases, more than sixty in all, in spite of his voice. He knew that some trial lawyers claimed a strong opening statement like Schlichtmann’s could win a case outright. In Facher’s experience, this was sometimes true, but only in short, uncomplicated cases. In the lengthy cases he’d known, openings didn’t matter that much. They were soon forgotten. Facher didn’t know how long Schlichtmann expected this first phase, the waterworks, to last. But he, Facher, had no intention of letting it be brief.