Schlichtmann thought the idea had possibilities. If he could get the judge angry at Cheeseman at the start of the hearing, perhaps Skinner would regard the Rule 11 motion more skeptically. Schlichtmann decided that the moment he entered the courtroom he’d start talking and he wouldn’t sit until he had turned the judge’s attention to the barratry charge and away from Rule 11. Whether he would succeed was another matter. Judge Skinner, he knew, liked to keep a tight control of proceedings in his court.
They decided to pack the entire case file—all the EPA reports, the leukemia study by the Centers for Disease Control, toxicology reports on the chemicals, newspaper clippings, every bit of data and piece of paper generated about the Wells G and H—and lug it all to court. They would pile it on the counsel table, in front of Judge Skinner’s bench, as evidence of how much information they had to support the complaint. They loaded the files into three large cardboard boxes and placed those on a wheeled cart. Even in its infancy, the case had grown to an impressive size.
Conway looked at the baggage with a appraising eye. “Jan, don’t forget your toothbrush,” he said.
6
Thursday afternoon, January 6, 1983, was a gray, overcast day, the smell of snow heavy in the air. Out of the offices of Reed & Mulligan came a procession of lawyers—Schlichtmann in the lead, flanked by Roisman and Conway, followed by Reed and Mulligan and half a dozen others, friends who were coming to lend moral support. Word of the unusual hearing had traveled quickly among the Boston personal injury bar. The group marched up Tremont Street, past the black wrought-iron fence of the Old Granary Burying Ground, where the earthly remains of Paul Revere lie, and turned down Milk Street toward the federal courthouse.
The U.S. District Court for the District of Massachusetts is situated in the John W. McCormack federal building, twenty-two stories tall, built in the 1930s of granite and black marble. The building occupies an entire city block, a dark, massive structure of towering stone piers and tall, narrow windows. Heavy bronze grillework covers the lower windows and doors, and above the arched entryways carved stone spandrels depict battle-axes and eagles. In the crenellated battlements high above, peregrine falcons live and prey on the pigeons that feed in Post Office Square.
Under the cold winter sky the building looked foreboding to Schlichtmann. His brow was moist with sweat and his palms were damp. He had not slept well last night. He’d lain awake for a long time, thinking about disciplinary hearings, public censure, disbarment. He regretted ever getting involved in this case. When he arrived on the fifteenth floor, where courtroom No. 7, Judge Skinner’s court, was located, he stopped first at the men’s room. He washed his hands and splashed water on his face, stared for a moment out the window, trying to compose himself.
He entered the courtroom through a pair of tall leather-padded doors. The room was large, with high, vaulted ceilings, black polished marble wainscoting, and fluted columns along the walls. A pale winter light entered the room from a row of windows behind the jury box. Under the windows, old radiators hissed softly, emitting a stale, faintly steamy odor. From above the judge’s black marble bench peered a large bronze eagle in bas-relief, its talons clutching arrows. The room was divided in half by a thick wooden railing, the long rows of the spectators’ gallery on one side, the counsel tables, jury box, and judge’s bench on the other. To the right of the judge’s bench, directly across the room from the jury box, was the raised platform of the witness stand. It consisted of a narrow desk made of dark, polished wood, behind which was a heavy leather-upholstered chair.
Courtrooms were familiar places to Schlichtmann. He never entered one without feeling a sense of anticipation, a pleasing surge of energy and nervous excitement. But he’d never before seen a courtroom from the perspective of the accused. He might at this moment have been in handcuffs. The cavernous, stolid old courtroom looked gloomy, and the witness stand, where the judge would have him sit today, seemed menacing.
Schlichtmann went with Roisman and Conway to the long wooden table directly below the judge’s bench, the counsel table usually reserved for the plaintiffs. The rest of his retinue, the friends lending moral support, sat in the front pew of the spectators’ gallery. Two other groups of lawyers, seven or eight in all, entered the courtroom. Schlichtmann recognized none of them. A tall man, perhaps forty years old, in need of a haircut, wearing a sheepskin coat and a leather cap with a narrow brim, took a seat at one counsel table. Schlichtmann heard this man speak to a woman dressed in a dark suit who was seated next to him. He recognized the voice and knew that this was Cheeseman. To Cheeseman’s left, at the third counsel table, sat two men, one who appeared to be about sixty, the other one younger, near Schlichtmann’s age. The older man wore a cheap gray suit that looked as if it was made of polyester. The younger man was short and stocky with a mustache and glasses, and a round, moonlike face. Schlichtmann did not know their names, but he surmised that they must be counsel for Beatrice Foods.
The door to the right of the judge’s bench opened and Judge Skinner appeared, black robe draped over his bent form.
“All rise,” said the clerk. “This court is now in session. Civil Action 82-1672, Anderson et al. versus W. R. Grace, et al.”
Judge Skinner studied the gathering of lawyers with a look of mild surprise. “This is the only case?” he said to his clerk. “There are a lot of lawyers.” He saw Facher sitting at a counsel table. He’d known Facher for thirty years, since law school, and Facher had tried several cases in his court before. “Mr. Facher, do you have an interest in this case?”
“I am a co-defendant, so I guess I do have an interest,” said Facher. “But it’s not my motion,” he added.
“All right,” said the judge. “It’s Foley, Hoag’s motion, I guess. There’s been a lot of publicity about this case. I consider that to be a disciplinary question that must be raised—if it is raised—with the Board of Bar Overseers and not in connection with the trial.” The judge paused. “The remaining question is Rule 11.”
Schlichtmann had remained standing. He did not know if Judge Skinner remembered him. “Your Honor, if I might, my name is Jan Schlichtmann.”
“I know,” said the judge.
“Your Honor,” continued Schlichtmann, “this is a very unusual procedure for me.”
“For me, too,” replied the judge. “I’m taking quite an interest in Rule 11. I think it’s been woefully ignored in the history of the federal rules, and that has probably caused the dockets of this and other federal courts to be clogged with a good deal of garbage over the years.”
Schlichtmann took a deep breath. “I’d like to bring to Your Honor’s attention an important matter. Under the heading of ‘Barratry,’ Mr. Cheeseman states that he has ‘highly specific and direct evidence’ to support the charge that we have engaged in the solicitation of clients, which is a violation of the disciplinary rules and could subject us to disbarment if proven. He says it’s based on privileged communication from Hale and Dorr, counsel for the co-defendant in this case. They have information which they have supplied to Mr. Cheeseman concerning my improper conduct.”
Judge Skinner looked mystified. He thought he was hearing the Rule 11 motion, not a charge of barratry. “Barratry?” the judge said. “It’s a privileged communication from counsel for whom?”
“From Hale and Dorr, counsel for Beatrice Foods, which owns the John J. Riley Tannery,” said Schlichtmann.
The judge looked at Cheeseman. “Where’s the privilege supposed to be?”
Cheeseman stood to explain. “There was a communication from Beatrice Foods’ client to their attorney, which was then communicated to me.”
“Well, then,” said the judge, “the confidentiality of that is destroyed, isn’t it?”
“I think not,” said Cheeseman.
“Why not?”
“Because we’re engaged jointly in the defense of an action. My understanding of the rules—”
Judge Skinner waved his hand impatiently. “If
you think you are going to give me secret stuff against this attorney”—Skinner pointed to Schlichtmann—“without giving him a chance to respond in open court, you are not. I’m going to send your motion packing. If you have a basis for this charge, you better reveal it. If you don’t, forever hold your peace.”
Schlichtmann started to speak. “Your Honor—”
“Wait a minute,” interrupted the judge. “There’s going to be enough spitting back and forth without you starting so soon.” He glared at Cheeseman, awaiting his response.
“If Your Honor doesn’t wish to see the affidavit,” said Cheeseman, “I have no interest or desire in showing it to you at this time.”
“I am not going to take an in camera motion on a matter that involves this attorney and his professional reputation. We’ll proceed with the Rule 11 motion.”
But Schlichtmann was not ready to proceed with the Rule 11 motion. “Your Honor, may I?” he said again.
Judge Skinner nodded.
“I hope you appreciate that this accusation of barratry compromises my relationship with my clients as well as with you, Your Honor, because I now appear before you under a cloud of impropriety.”
“The cloud has not materialized,” said the judge.
“But a lie is halfway around the world before the truth gets its boots on,” replied Schlichtmann.
The judge looked amused by this piece of rehearsed wisdom.
“I ask that Hale and Dorr reveal what information it has so we can dismiss this charge and get on with the business of this lawsuit,” continued Schlichtmann. “Otherwise I’ll appear before Your Honor with these grave accusations of impropriety, and Your Honor has no idea whether they are true or not.”
The judge sighed. “Mr. Facher, do you wish to reveal this material to Mr. Schlichtmann at this time?”
“I don’t want to prolong this,” said Facher, standing to address the judge. “The characterization that it’s ‘highly specific and direct evidence’ is his characterization”—Facher indicated Cheeseman“—and not mine. We received certain communications, we said this is the information we received, here it is. We did nothing about it. I don’t have any particular problem if Mr. Cheeseman wants to tell Mr. Schlichtmann, although technically, I guess, it still is privileged because it came from a client and we’re engaged in a joint defense.”
“I don’t know about that,” said Judge Skinner.
“I want the Court to know that this is not my characterization of the information,” repeated Facher.
Schlichtmann, still standing, glanced at Cheeseman, who in turn was looking curiously at Facher.
“I make a motion to strike this material as being scandalous and immaterial,” said Schlichtmann. “An allegation made by Mr. Cheeseman in an attempt to discredit me in front of this Court.”
“I will not strike it,” replied the judge, “but I will impound it. Who knows? Maybe it’ll turn out to be correct.”
“That’s precisely the point, Your Honor,” said Schlichtmann. “I’m in an impossible position.”
“No you’re not. You can consider yourself perfectly innocent until some proof has been raised. As a matter of fact, I think the whole notion of solicitation is undergoing some change, and quite properly so. Once you start talking about lawyers representing classes of disadvantaged people who, practically by definition, are not in a position to go seeking counsel, you have some element of solicitation. I’m inclined to think it’s a good thing.”
“Hale and Dorr said they would not characterize it—”
“Look, Mr. Schlichtmann,” interrupted the judge, “I understand you’re in a terrible state of concern. There’s nothing I can do about it this afternoon but impound this document.”
“I think Mr. Flasher”—Schlichtmann had not heard Facher’s name correctly, and now he mispronounced it—“has an obligation to me. I ask that he give this information to the Court.” Schlichtmann knew by the judge’s reaction—a barely perceptible widening of the eyes, a slight compression of the lips—that he had gotten Facher’s name wrong. From the counsel table behind him, he heard a muffled snort. He felt as if he had committed an indiscretion, a social gaffe; his ignorance of Facher’s name and stature marked him as an outsider.
“I can’t put the thumbscrews to Mr. Facher, can I?” said Judge Skinner. He seemed to articulate Facher’s name with elaborate clarity.
“I’ll be glad to inquire of my client,” offered Facher.
“Do you want to go out and get on the phone right now?” asked the judge.
Facher had not meant to make the inquiry at this very moment, but he shrugged his assent and slowly departed the courtroom. There was a pay telephone in the corridor, right outside the courtroom door.
“Meanwhile,” said the judge, “let’s get back to the Rule 11 motion.”
Schlichtmann slowly sat.
“The matter before us seems to be a very simple one. The question is: What did you have before you when you drew up this complaint? And the best way to find that out is for Mr. Cheeseman to ask you. If you had a basis to file a lawsuit, that’s the end of it. If you filed the thing without making some kind of investigation, then I’ll strike the complaint.”
Schlichtmann was on his feet again. “It would be, I believe, unseemly for a plaintiff’s attorney to take the witness stand and answer questions by the defendant’s attorney,” he said. “I almost feel it would be necessary for us to have our own attorneys. I’m willing to provide the Court with detailed affidavits.”
“No. I’m not going to decide the case on affidavits. Let there be cross-examination. The allegation, as I understand it, is that you charged W. R. Grace with running a chemical operation in Woburn, and what they actually have out there is a machine shop.”
The judge had gotten this wrong, no doubt from reading Cheeseman’s motion, which had made exactly that assertion. “It is not a chemical operation,” agreed Schlichtmann. “It is a machine shop, but they do use various chemicals and solvents.”
“Don’t try the case here,” said the judge, annoyed. “The motion is Mr. Cheeseman’s and the floor, properly at this point, is his. I’m going to permit him to inquire of you.”
“Your Honor,” continued Schlichtmann, “we’ve provided affidavits about our investigation, the hours spent, the public documents we used, the experts we consulted. We came to the conclusion that we had good faith and good reason to believe that W. R. Grace used these chemicals and that these chemicals entered the groundwater and contaminated it, resulting in injury to the plaintiffs.”
“Okay,” said Judge Skinner. “Now Mr. Cheeseman is entitled to cross-examine you.”
Cheeseman stood, legal pad in hand, ready to call Schlichtmann to the witness stand.
But Schlichtmann would not stop talking. “When I take the witness stand, I cease being an attorney for my clients. I become a witness in this case subject to all the rules of examination. I can no longer be a professional, objective advocate for my clients.”
“The inquiry is going to be limited, Mr. Schlichtmann. I have no doubt that this is the way to proceed.”
“Your Honor, I cannot take the stand without withdrawing as counsel in this case.”
“No,” said the judge, “I don’t think that is right.”
“I’m under ethical considerations not to be a witness in a case against my client, Your Honor. What I say on the witness stand will determine whether my client’s complaint is stricken and the case thrown out of court.”
“That’s right,” said Skinner.
“Is it not unseemly for an attorney—”
“Look,” said Judge Skinner, visibly angry now. “I’ve decided how I’m going to do it, and that’s how I’m going to do it. I will not listen to much more of this.”
“Your Honor, forcing me into the humiliation and disgrace—”
“You will survive it,” said Skinner curtly. “Being a lawyer is no bed of roses. Now you sit down, and Mr. Cheeseman can call a witness.”
Schlichtmann complied, a grimace on his face.
The judge looked at Cheeseman. “Who do you want first?”
“Mr. Schlichtmann,” said Cheeseman.
“I respectfully refuse to take the stand,” said Schlichtmann, on his feet again. “I ask the Court’s forbearance in allowing me to argue why it is unnecessary.”
Judge Skinner had run out of forbearance. He could hold Schlichtmann in contempt, impose a fine, even jail him until he agreed to take the witness stand. Or he could dismiss the case outright. He seemed to consider the possibilities for a moment. Finally he said, “I’m not going to hold you in contempt if you are acting under what you think is your professional conscience. But I may dismiss the complaint.”
“That’s precisely the predicament I’m in,” said Schlichtmann, hands outstretched. “I have an obligation to myself and to my client. It may result in my client having his case thrown out of court.”
The judge sighed deeply. “I don’t think there are six questions that Mr. Cheeseman can ask you, actually.”
Schlichtmann could see that he was wearing the judge down. “Could we try it this way—have you ask those six questions?”
“You want Mr. Cheeseman to submit the questions to me?”
“Yes, Your Honor.”
“Mr. Cheeseman, are you willing to do it that way?”
“I have a few more than six questions,” Cheeseman said, who was obviously reluctant to do it that way.
“Well, whatever you have, do you want to give it to me?”
“I’m sure you can’t follow my handwritten notes.”
“Give me a chance.” The judge beckoned Cheeseman to come forward. “Come over here to the side bar.”
Cheeseman walked reluctantly to the side of the judge’s bench, carrying his yellow pad of notes.
Schlichtmann watched in astonishment. All Cheeseman had to say was, No, he wanted to conduct the examination himself, it was his right to do so, and thereby affirm the judge’s first instinct. But he had given in without a fight. Schlichtmann glanced at Roisman, raised his eyebrow, and smiled a small, quick smile.
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