A Civil Action

by Jonathan Harr

  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.

  2

  Schlichtmann figured it would take him four or five weeks to complete the waterworks phase of the trial. In broad outline, his task was quite simple. He had to prove that the Grace and Beatrice properties were contaminated with TCE and other toxic solvents, and that these solvents had seeped into the groundwater and migrated to the city wells by the late 1960s.

  He would call as many as thirty witnesses, but he intended to rely chiefly on the testimony of two expert witnesses. The first, a geologist, would describe to the jury the extent of the TCE contamination in the soil of the Grace and Beatrice properties and the time at which, in his opinion, it had occurred. The second expert, a Princeton professor, an
authority on the subject of groundwater flow, would explain how the TCE had percolated into the aquifer and was then drawn by the pumping action into Wells G and H.

  The timing of these events was critical to Schlichtmann’s case. He had to show that TCE had gotten into the wells before the leukemias and assorted other ailments began to show up. With Grace, that was easy. He would call Tom Barbas and his fellow employees to the witness stand and have them testify about dumping TCE throughout the 1960s. Beatrice was more difficult. Schlichtmann did not have eyewitnesses who could implicate John J. Riley in the contamination of the fifteen acres. He would have to rely on circumstantial evidence and the testimony of his expert witness, the geologist, to date the contamination.

  “Facher thinks all expert witnesses are whores. He’ll say to you, ‘You’re making it up, you’re a charlatan!’ ”

  “Can I laugh at him?” asked the geologist.

  They were in the conference room at Schlichtmann’s office. It was late in the evening. The geologist, a courtroom virgin, was getting a final lesson in witness-stand etiquette on the eve of his appearance. “Do you tend to get nervous?” Schlichtmann asked. “You will never—ever!—put your hands to your face.”

  The geologist smiled. “How about scratching my crotch?”

  Schlichtmann didn’t smile. “Just keep your hands clasped in front of you,” he said. “Don’t leave them free. Do you cross your arms like this?” Schlichtmann folded his arms tightly across his chest and drew his shoulders forward. “Don’t do it. It looks hostile and withdrawn. Now you’re slouching! Don’t slouch.”

  “I’m a sloucher by nature,” said the lanky geologist, sitting more erect.

  “Sit on the edge of the chair. It keeps you alert. And keep your eyes on whoever is talking. When Facher and Keating start cross-examining you, never look at me.” Suddenly Schlichtmann jumped up and pointed an accusatory finger. “Ahhhaa! Your hands are in front of your mouth now! You just went from slouching to lip holding!”

  The geologist drew his shoulders back and sat erect, hands folded in front of him, as motionless as an artist’s model. He held the pose for a moment and then he collapsed into laughter. He was punchy from long hours of work.

  Schlichtmann went on: “They’re going to ask, ‘Are you being paid for your testimony?’ What do you say to that?”

  The geologist hesitated. “Yes …?” he ventured cautiously.

  “No, no, no! You’re being compensated for your time. By the way, do you own a burnt-orange sports coat? A puke-green tie? For God’s sake, don’t wear it. I want you to wear a conservative suit.”

  The geologist’s name was John Drobinski. He and Schlichtmann had already spent many days before the start of trial going over the substance of his testimony. During the past year Drobinski had led a team of other workers in mapping every foot of the Beatrice and Grace properties. They had drilled more than two dozen test wells in the Aberjona marsh, conducted seismic refraction studies of the underlying bedrock contours, and collected samples of contaminated soil. On the fifteen acres owned by Beatrice, Drobinski had dug into piles of debris and rusted 55-gallon drums, piles saturated with TCE. He had found a Woburn campaign sticker from 1963, a prescription bottle dated 1967, and Budweiser beer cans with tab tops of the sort that Budweiser said they had stopped making in 1970. He had chopped down a stunted tree growing out of one pile and sent cross-sections to a botanist, who determined that the tree, eighteen years old now, had started growing in 1967. Based on these discoveries, and especially aerial photographs from the 1950s and 1960s that clearly showed the piles of drums and debris, Drobinski would take the witness stand tomorrow and testify that the Beatrice property adjacent to the tannery had been contaminated for at least twenty-five years.

  Schlichtmann thought it would take him about three days to guide Drobinski through his testimony against Beatrice.

  “A plaintiff’s case depends on momentum,” Facher once told his Harvard class. “The fewer objections you get, the better your case will move along. Objections break up the rhythm of an examination.”

  And so Facher objected, and kept on objecting. On the second day of trial, the morning Drobinski was supposed to take the stand, Facher demanded an audience at the judge’s bench. He objected to documents that Schlichtmann planned to put into evidence on the grounds of relevance, hearsay, authenticity, best evidence, and undue prejudice. “It is a dreadful piece of work,” Facher said of one report by a state environmental agent. “The most outrageous report you’ve ever seen.” He objected to Drobinski’s soil-test results, and again when Drobinski, on the stand at last, tried to show the jury photographs he had taken on the fifteen acres. “They’ve got these giant blowups of everything!” Facher complained in a whispered conference at the judge’s bench.

  “Of course,” said the judge. “If you’re going to present a case to the jury, you blow up the photographs. You’re not shocked by that, are you?”

  “But these blowups, they’re distortions,” insisted Facher. “When you see them you’ll agree. They have a hand the size of a tennis racket in this photograph.”

  “If you want to point out that nobody has a hand that big, you’re entitled to do it,” said the judge.

  Facher objected when Schlichtmann tried to bring into the courtroom a large diagram depicting the fifteen acres. “The King Kong exhibit,” Facher called it, “a gigantic piece of demonstrative evidence, I would say ten feet high because it’s bigger than Jan, and Jan is about six feet four. They’ve drawn little pictures of barrels on it, and they’ve got a hinge on it and then there’s a big index, and I will object to it.”

  The proceedings ground to a halt as the judge left the bench and went out to the corridor to examine the King Kong exhibit. He permitted Schlichtmann to use it, but that didn’t deter Facher. A few moments later, Facher objected to a photograph of the tannery’s sludge lagoons. “It’s a false photo,” he told the judge.

  Schlichtmann turned to stare at Facher. “It is, is it?”

  “Absolutely,” said Facher.

  “It’s your photo,” said Schlichtmann, “from your own engineer. Did your engineer falsify it?”

  Throughout the first week of trial, every morning began with Drobinski taking the witness stand and then sitting mutely, hands properly clasped before him, as the lawyers gathered at the judge’s bench to dispute one matter or another. The interruptions would continue throughout the day. Facher would rise to object and ask to speak to the judge, and then all the lawyers, including Cheeseman and the other Grace lawyers, would rise and troop up to the bench for a conference in low but urgent voices that could last from a few seconds to half an hour. On the fourth day of trial, Facher’s objections resulted in twenty-two trips up to the judge’s bench. Drobinski, meanwhile, sat on the witness stand, and the jurors sat in the jury box, looking bored and sleepy. They were forbidden to bring newspapers or other reading material into the courtroom. They gazed numbly at the vaulted ceiling or at the gallery, where the crowd had by now dwindled to fewer than a dozen people.

  Nesson, the expert on the Federal Rules of Evidence, the one who knew more about their arcana than anyone else in the courtroom and perhaps in the entire First Circuit, would stand beside Schlichtmann at the bench conferences and argue in opposition to Facher. He overcame most of Facher’s objections, but even so he grew increasingly frustrated. “Your Honor,” he told the judge, making no effort to conceal his anger, “I’d like to put on record an objection to Beatrice’s efforts to break up the flow of the case and to delay this trial in every conceivable way.”

  “I would agree,” replied the judge, “except that I think you invited this kind of thing by pushing for trial when you weren’t ready.”

  Judge Skinner, of course, had also been anxious to keep the trial date. Perhaps because of this, the judge seemed willing to tolerate some of Facher’s more frivolous objections. And not all of the objections were frivolous. On the seventh day, just as Drobinski was about to utter h
is expert opinion on the time of contamination, Facher asserted that there was no proper scientific foundation for this opinion, which was based on nothing more than digging up old beer cans, chopping down a tree, and looking at aerial photos. Maybe those piles of debris and drums had been there for thirty years, Facher allowed, but no one could say with scientific certainty that they had been contaminated with TCE back then. Someone could easily have come onto the property in 1979, after the wells had closed, and dumped TCE onto those piles. For this reason, Facher asked the judge to exclude Drobinski’s opinion and thus end the case against Beatrice then and there.

  Judge Skinner seemed tempted to do so. Nesson warned that such a ruling would be a grave and costly mistake that would surely be reversed by the Court of Appeals. Under Rule 702 of the Rules of Evidence, Drobinski met all the proper qualifications as an expert, Nesson argued. It was therefore up to the jury, not the judge, to decide whether they believed Drobinski’s testimony.

  That debate went on for an entire morning. The twelve jurors, meanwhile, sat upstairs in the small, overheated jury room. At noon, Judge Skinner retired to his chambers to ponder the matter. Upon his return, he told the lawyers that his decision was “a very close one.” Drobinski’s opinion could not rightly be called “scientific”—“He eyeballs the soil the way anybody who has ever dug a hole eyeballs the soil,” said the judge. Nonetheless, on the basis of Nesson’s argument, the judge decided he would permit Drobinski to state his opinion to the jury.

  Nesson had just earned his keep. He had single-handedly saved the case against Beatrice. Back at the office that afternoon, Schlichtmann was exultant. “Charlie, you got inside the judge’s perimeter!” Schlichtmann crowed gleefully, splaying his fingers out like a mystical masseur. “You were touching the old bastard’s brain!”