A Civil Action (46 page)

All the families had felt a flurry of excitement and high expectations at the start of trial. But now, as the weeks dragged on and the daily
transcripts mounted into a towering pile, their lives settled back into the normal daily routine of work and school. The trial—their trial—became a distant echo.

In the courtroom, Schlichtmann had begun his case against W. R. Grace. Nesson couldn’t understand why he had bothered to call a former Grace worker named Frank McCann to the witness stand. McCann admitted using TCE to clean fingerprints and grease off conveyor belts, but he insisted that he’d never dumped any waste solvent behind the plant, nor had he ever seen anyone else doing so. Nesson shook his head in consternation over McCann. “I thought he was a net loss. I don’t understand why you called him.”

“Charlie, Charlie!” exclaimed Schlichtmann, his eyes wide in astonishment. “Don’t you see what I did? This guy said he used a half-gallon of TCE a day. Half a gallon! He said the conveyor belt bubbled if he left it on too long. If the jury hears that often enough, they’ll damn well remember it.”

Nesson had to agree this was true, but if he had missed that point, he wondered how Schlichtmann could expect the jury to get it. Nonetheless, the case against W. R. Grace was moving swiftly, and despite some misgivings Nesson told Schlichtmann one afternoon, “I think it’s going fabulously well against Grace.”

Schlichtmann managed to get six witnesses, all former Grace employees, on and off the stand in one day, a record for this trial. In large part this happened because Facher was, for the time being, just a spectator. Schlichtmann’s examination of Tom Barbas took a day and a half, but it went smoothly. At first Barbas sat erect in the witness stand, in a blue blazer and red tie, but as the hours passed his shoulders sagged and the judge had to urge him repeatedly to keep his voice up. “Shout as if you are outdoors, Mr. Barbas,” urged the judge.

Schlichtmann asked Barbas to describe what he did at the end of work each day with the tray of paint sludge and waste solvent, and Barbas said, “I would take the tray out to the rear of the plant and place it on the ground.”

“You dumped it on the ground, didn’t you, Mr. Barbas?” said Schlichtmann.

“I don’t think I said ‘dumped,’ ” replied Barbas cautiously. “I said I used to
place
the material on the ground and let it dry.”

Barbas, of course, had spent hours with the Grace lawyers preparing for every nuance of his testimony. This answer sounded like one the lawyers had drummed into him. But Barbas found himself trapped time and again by his deposition testimony. When Schlichtmann asked Barbas how often he’d seen Joe Meola, the maintenance man, dump pails of solvent on the ground, Barbas said, “I believe I only saw him a few times.”

“Didn’t it happen at least once a week?” Schlichtmann asked.

“I don’t know if I saw him doing it once a week.”

Schlichtmann picked up Barbas’s deposition and flipped it open. “At your deposition, didn’t I ask you how frequently Mr. Meola poured waste liquid into the trench? And didn’t you answer, ‘At least once a week’?”

“Yes,” said Barbas.

“And isn’t that the case?”

“I believe it to be, yes,” conceded Barbas.

After a while, when Barbas balked, Schlichtmann would simply pick up the deposition and start toward the witness stand, and Barbas, seeing this, would turn docile and give the answer Schlichtmann sought.

During the morning recess, Tom Kiley lingered in the corridor outside the courtroom, watching from afar as two Grace lawyers escorted Barbas into a small alcove. He saw Barbas standing mute, looking sadly at his shoes, while the lawyers pressed close and whispered to him. Kiley smiled. “There’s a pool of blood on the floor,” he told Schlichtmann afterward.

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 making 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.