A Civil Action

by Jonathan Harr

  By then he’d already applied to law school. Cornell accepted him. His marriage ended. In his first year at Cornell, Judge Pettine’s ruling, some thirty pages in ringing support of the nuns and welfare mothers, was reported in the Federal Supplement.

  In law school, the big issues of law and society—civil liberties and the First Amendment—captivated him. Like every law student, he was required to study the law of torts, that broad field dealing with the compensation of people who had suffered loss or injury at the hands of another. He got a C in torts, a subject he found dull and unimportant.

  He gave little thought to how he’d make a living as a lawyer. Most of his classmates were angling for big money jobs in big city firms, and Schlichtmann did the same. In his third year he had an interview with a senior partner from the New York law firm of Skadden, Arps, Slate, Meagher & Flom, one of the biggest and richest firms in the country. The interview got off to a bad start. The senior partner, who was cold and brisk throughout, asked Schlichtmann if he had any misgivings about working for the ACLU. He asked the question in a tone that suggested Schlichtmann should have misgivings. Schlichtmann said, “My only regret is coming to this interview,” and he got up and left.

  Schlichtmann flirted with the idea of becoming a country lawyer, but he finally decided on a job with a small Washington, D.C., law firm that specialized in dealing with the Federal Communications Commission. On the first day of his job one of the firm’s lawyers took him to the FCC and introduced him to the government agency he would be dealing with. On the second day he was shown a towering stack of government forms he’d be filling out so that a television network could purchase new stations. On the third day Schlichtmann sat at his desk wondering how he would endure his job. That morning he got a call from his criminal law professor at Cornell, G. Robert Blakey, who had just been appointed chief counsel for the House Select Committee on Assassinations. There was an opening on the staff. Was Schlichtmann interested?

  Schlichtmann went into the managing partner’s office and asked for a year’s leave of absence.

  “Pro bono?” said the partner. “We don’t do any goddamn pro bono work here.”

  “I thought it would look good for the firm,” said Schlichtmann.

  “The best thing for the firm,” said the partner, “would be for you to get out now.”

  Schlichtmann spent nine months with the House select committee. He was one among many staff lawyers, and a low-ranking one at that. He felt stifled by the bureaucracy, by the need to report every action to superiors. He began to dream again about becoming a country lawyer, being his own boss, seeking fulfillment among the common folk.

  He quit the committee and drove to Portsmouth, New Hampshire, with the idea of starting a practice. He discovered that Portsmouth already had plenty of lawyers. On the way back to Boston, he saw a sign for Newburyport, a coastal fishing village that was rapidly developing into a community of condominiums and boutiques. In Newburyport, a real estate agent told him it was just the sort of place that needed more lawyers, and he actually believed her.

  Schlichtmann rented a second-floor apartment in a building in the center of town. He divided his living room into an office and reception area and hired a part-time secretary. He decided he would own the best law library in Essex County. He built his own bookshelves and started filling them with lawbooks, all bought on credit, no money down. In June he opened the office. Business was slow. He read his new lawbooks. By October he was broke and two months behind on the rent. He owed the landlord eight hundred dollars. One day that fall, a man walked into his office with an incredibly tangled real estate matter that he described at great length to Schlichtmann.

  “Will you take the case?” the man asked finally.

  “Yes,” said Schlichtmann, with a sinking heart.

  “How much will it cost to retain you?” asked the man.

  “Eight hundred dollars,” said Schlichtmann. He had begun to suspect that country lawyering was not for him.

  During the next year and a half he worked on sundry legal matters. He recovered a security deposit in a landlord-tenant dispute. He handled a few workers’ compensation claims, a drunk-driving case, a dispute between a customer and a local merchant, and a “slip ’n fall,” as it was called in the trade—a young woman emerged from a bar, caught the heel of her shoe in a sidewalk grate and fell, shattering her elbow. Schlichtmann attempted to cultivate the local banks in order to get house closings, but he had no great success. He eked out a living. He fell behind on payments for his law library.

  One morning, a shy, inarticulate young man named Lowell Eaton entered his office and asked, apologetically, if he might talk to Schlichtmann about a legal matter. Eaton explained that his only child, a three-year-old boy named Stuart, had drowned five years ago in a gravel pit next door to his house. It had happened on a Saturday afternoon, when Lowell and his wife were both working the morning shift at the shoe factory. The boy’s grandmother was tending the child. She left him alone in the backyard for a few minutes while she went into the kitchen to get a basket of laundry. When she returned, Stuart was nowhere in sight. She went next door, where Stuart’s aunt lived, but found no sign of the boy. After an increasingly frantic search, she found Stuart floating facedown among the reeds and overgrowth of the gravel pit. The very next day, Lowell Eaton told Schlichtmann, the construction company that owned the land had sent a convoy of dump trucks to fill the pit.

  Lowell explained that he’d already gone to one lawyer. The lawyer had filed a suit against the construction company, but then nothing had happened. Lowell had called the lawyer every so often to ask about the case. Three years had passed. The last time Lowell had called, the lawyer had advised him to stop dwelling on the death of his son. By then, Stuart’s grandmother had died and there were no witnesses to the boy’s death. The case, the lawyer had said, was hopeless.

  Lowell Eaton asked if Schlichtmann would take the case, and Schlichtmann agreed to look at the file. A wrongful death case was more complicated than anything he’d ever attempted. It required writing up lengthy interrogatories, taking the depositions of witnesses, and properly requesting documents. If the case went to trial, he’d have to choose a jury, give opening and closing arguments, cross-examine witnesses, and build foundations for evidence. He had never done those things before, but he had little else to occupy him. He told Lowell Eaton he’d take the case.

  Schlichtmann filed an amended new complaint asserting that the construction company was negligent and reckless in allowing the pool of water to accumulate in the gravel pit, in not fencing the land, filling in the pit, or posting it as a hazard. The defense lawyer was named Clement McCarthy, a veteran of several hundred trials and a dour and gloomy man. He denied the accident had taken place on his client’s land or that such a pit had ever existed. Certainly it did not exist today, said McCarthy. And even if it had once existed, Stuart Eaton had been a trespasser. Moreover, his parents had assumed the risk by choosing to live next to a gravel pit, if such a pit had indeed ever existed.

  Schlichtmann began reading books on the fundamentals of discovery and trial practice. He hired a photographer to fly above the site of the old gravel pit and take aerial photographs. He collected photographs of Stuart in the week before his death, photographs of Stuart’s parents proudly holding their son. In Rhode Island he located the newspaper photographer who had taken a picture of the pit and the pool of water on the afternoon of Stuart’s death. He had all of those photographs enlarged to the size of movie posters and mounted for display in the courtroom. He hired a civil engineer and a doctor to testify as expert witnesses. Late one evening he realized that he had found his calling. “This,” he said to himself, “is what I want to do with my life.”

  After four months of work, he felt prepared for trial. He struggled to get a trial date in the crowded state courts while Clem McCarthy requested and received one continuance after another. With each delay, Schlichtmann went back to the case and worked some mor
e. By the end of seven months, he had spent fifteen thousand dollars on the case, most of it borrowed. He was deeply in debt. The lawbook company dunned him. His landlord threatened to evict him. Creditors called constantly. His part-time secretary, Kathy Boyer, was working full-time for no pay.

  A week before the new trial date, the claims manager at Liberty Mutual, the insurance company that represented the construction company, called and offered to settle the case. “Let’s get rid of this thing,” said the claims manager. “Everybody in the case is dead—the owner of the construction company, the boy’s grandmother, the boy. Without the grandmother, you don’t have a witness to the boy’s death. I’ll give you five thousand dollars and you’ll go on to the next case.”

  “I can’t do that,” said Schlichtmann.

  “That’s more money than this family has ever seen before. There’s no way you can win this thing. With five thousand, you can get your expenses back.”

  “I’ve spent fifteen thousand,” said Schlichtmann.

  The claims manager laughed grandly. “You say this is your first trial? Maybe I’ll come and watch this. I want to see the kid who blew the Eaton case.”

  The trial lasted eight days. Schlichtmann sat at the counsel table with Kathy Boyer. Clem McCarthy objected constantly on procedural grounds: “Lack of foundation, hearsay, leading question, irrelevant.” Judge Peter Brady would summon Schlichtmann to the bench and explain the rudiments of trial technique. The judge was a patient man, and he was also impressed by the work Schlichtmann had put into the case. On the last day of trial the judge called both the lawyers to the bench. “I think somebody’s going to get hurt here,” he said. “My sense is that you should settle this case.” He looked at Clem McCarthy, “I think seventy-five thousand dollars is fair.”

  “Judge, what are you doing to me?” said McCarthy with great indignation but also with an eye on Schlichtmann. “Jesus Christ, this case isn’t worth that much!”

  In the hall, Schlichtmann asked Kathy Boyer’s advice. “Take it, Jan,” she said, thinking about the many weeks she’d gone without a paycheck. The Superior Court clerk took Schlichtmann aside and offered his advice. “This is a tough county,” he said. “A drunk driver ran down a kid playing on his own lawn and the parents only got twenty thousand. You should take the money.”

  But after nearly a year of work, Schlichtmann wanted to hear what the jury would say. He told the Eatons about the offer. “I think we’ll win the case,” he said, “and I think we’ll get more money from the jury.” Lowell Eaton told Schlichtmann to do what he thought best.

  At the judge’s bench, Clem McCarthy said, “I’ve talked to my client and they’re willing to settle for seventy-five thousand.”

  Judge Brady looked at Schlichtmann.

  “I can’t accept it,” said Schlichtmann.

  “I was a trial lawyer for a long time,” the judge said, looking soberly at Schlichtmann. “I think you ought to give this very serious thought.”

  Schlichtmann said he had given it serious thought. “My clients would rather take no from the jury than seventy-five thousand dollars from the insurance company.”

  Clem McCarthy shook his head in amusement. “You’re not going to allow Mr. Schlichtmann any second thoughts after he’s shed his tears, right, Judge?”

  Schlichtmann gave his summation just before lunch. The jury began deliberating and Schlichtmann started pacing in the hallway, too nervous to eat. One hour and fifteen minutes later, the jury came back with a verdict of $250,000 for the Eatons, plus another fifty thousand dollars in interest accumulated since the time of Stuart’s death. Clem McCarthy, a grim look on his face, demanded that the judge set aside the verdict on the grounds that it was excessive. The judge, amused, rejected McCarthy’s motion. “You said there’d be no second thoughts after the tears were shed.”

  Schlichtmann’s gamble had paid off, but it had been foolhardy, dignified only by his inexperience and the fact that he’d won. It was not necessarily the best sort of lesson for a fledgling lawyer.

  2

  Schlichtmann’s fee from the Eaton case came to nearly a hundred thousand dollars. He paid his debts, gave Kathy Boyer a large bonus, and went to a tailor to get some suits made. He had decided to make his name as a trial lawyer, and the nearest place to do that, he knew, was in Boston. He wrote letters to the three most prominent personal injury firms in the city looking for a job. A month passed. He got no response. He sent out more letters. One of these he addressed to the firm of Reed & Mulligan.

  He was waiting to hear from the Boston firms when, by a stroke of luck, he landed a major case. A Newburyport businessman, the proud owner of a new single-engine Piper Arrow, had flown to Atlantic City for a weekend of fun and gambling with three companions. On the return flight to Massachusetts, the plane had crashed into Long Island Sound, killing all of the occupants. The bodies had not been recovered, although some debris from the Piper Arrow had washed up on a beach. One of the passengers had been a young divorcée whose four-year-old son was now in the custody of her ex-husband. As it happened, one of Schlichtmann’s part-time secretaries encountered the ex-husband one evening in a Newburyport bar. The man told her he was looking for a lawyer to represent his son’s interests.

  “I’ve got just the lawyer for you,” Schlichtmann’s secretary said.

  Schlichtmann had just plunged into the case when he got a telephone call from the senior partner at the firm of Reed & Mulligan. Barry Reed said he’d received Schlichtmann’s letter asking for a job and he wanted to meet with him. Would Schlichtmann come down to Boston for lunch?

  Schlichtmann met Reed at an expensive Italian restaurant on Beacon Hill, a place frequented by the governor and the mayor and the state’s other power brokers. Schlichtmann followed Reed across the restaurant, watching as Reed stopped at one table after another to exchange greetings, shake hands, and chat with acquaintances. Reed was at the height of his celebrity. He had written a novel, The Verdict, which was being filmed on location in Boston, starring Paul Newman. The Boston news media followed the filming closely, mentioning in nearly every story Barry Reed, author and lawyer. Often Reed’s photograph accompanied the stories. He was himself as handsome as a movie star—in his mid-fifties, slim, a full head of wavy silvery hair, his features chiseled and rugged. He had a reputation as a raconteur, and at lunch with Schlichtmann he told one story after another about his cases, interrupting his tales only to wave or nod to passing acquaintances. Schlichtmann felt dazzled by Reed. He noticed, though, that Reed never once asked him about himself. By the second hour Schlichtmann began to wonder why Reed had invited him to lunch.

  As Reed was signing the tab, he mentioned, as if the thought had just that moment occurred to him, that he represented the estates of two passengers in the crash of the Piper Arrow. The pilot had carried a million-dollar insurance policy, payable to the passengers if Reed could prove that the pilot had acted negligently. Reed said he had heard that Schlichtmann represented the third passenger. “I think you should let me handle that case,” counseled Reed. Of course, he added, he would pay Schlichtmann a handsome referral fee when the case was settled, and Schlichtmann would not have to do any work.

  “It’s my only case,” protested Schlichtmann, who had the distinct impression that Reed did not think him capable of handling it. “Why don’t we work on it together?”

  Reed didn’t appear to like this idea. He tried again to talk Schlichtmann out of the case, but Schlichtmann refused to give it up. In the end, Reed agreed to let Schlichtmann work with him, perhaps if only to keep a close eye on the young lawyer. “Okay,” said Reed. “You can work out of the conference room at my office.”

  Schlichtmann began spending most of his time at Reed & Mulligan. Reed would stop by the conference room occasionally to see how the “kid” (as he began referring to Schlichtmann) was doing. Usually the kid was there when Reed left the office at night. Usually he was there when Reed arrived in the morning. These hours were something new at
Reed & Mulligan. Sometimes the kid would disappear for a few days. Then he’d burst into the office brandishing a piece of the Piper Arrow or an article of clothing he’d found while combing a Long Island beach. The kid did not work quietly. Each new discovery brought shouts of jubilation from the conference room. The office settled back into tranquillity when the kid went to Atlantic City to trace the last days of gambling, drinking, and high living of the businessman and his three companions. It erupted when the kid returned with the businessman’s credit-card receipts and affidavits from the bartenders and cashiers who’d seen the four revelers on their last day.

  Schlichtmann believed the businessman had been drunk and therefore negligent in operating the plane. Furthermore, he’d earned his pilot’s license only four months before the accident and was not qualified to fly on instruments. Yet he’d left Atlantic City at six o’clock in the evening, taking off into overcast skies. He had entered the cloud cover near Long Island and encountered sleet and snow. Schlichtmann got a tape recording of the pilot’s last conversation with an air-traffic controller at Kennedy Airport. The entire office of Reed & Mulligan gathered around to listen. They heard the businessman, his voice panicky as he lost his bearings in the clouds, request a lower altitude from the air-traffic controller. The controller instructed him to turn to the right during his descent. He turned to the left instead. He apologized, and then there was an unintelligible sound, high-pitched and keening. Perhaps it was a scream. Seconds later the Piper Arrow disappeared from the radar screen.