A Civil Action (16 page)

Along with the out-of-court statements to the press (“the opening day publicity effort,” Cheeseman called it in his brief), Schlichtmann and Roisman had filed a groundless lawsuit and engaged in solicitation of clients, all violations of the Canons of Professional Ethics. Such behavior should anger any judge, thought Cheeseman. The Board of Bar Overseers might even decide to conduct disciplinary hearings. Schlichtmann could be publicly chastised and fined for his actions.

4

When Cheeseman removed the Woburn case from state court to the U.S. District Court, the file went to the office of the civil clerk on the fourteenth floor of the John W. McCormack federal building in downtown Boston. The Woburn case was one of 4,811 civil actions filed in the U.S. District Court in Boston that year. The in-take clerk assigned each new case to one of the court’s nine trial judges by means of a lottery, a system devised to prevent lawyers from shopping for a judge they believed sympathetic to them or their case.

For the Woburn case, the clerk took a small sealed manila envelope containing the name of one of the nine judges from the top of the tort category. He ripped it open and shook out a slip of paper with the name “Skinner, W. J.” typed on it.

At that time Judge Walter Jay Skinner had a backlog of more than five hundred cases. Each month, the lottery piled twenty to thirty new cases on top of that backlog. The vast majority of these cases would settle before trial, but they usually settled only after Judge Skinner had
met with the lawyers in a pretrial conference and threatened an early trial date. The judge worked long hours to reduce his backlog. He was another graduate of Harvard Law School, fifty-six years old, his hair turning white, his blue eyes pale and watery behind horn-rimmed glasses. In his chambers he was a man of great rectitude and decorum. He referred to his wife as “Mrs. Skinner,” and when a law clerk once called her “Sylvia,” he gave the clerk a withering stare. Among the Boston trial bar, he was known as a hardworking and fair jurist, but one who could also be short-tempered and curt. “Pull up your socks and try the case,” he’d warn lawyers. “I’m not going to hold up this trial while your minions labor in some library.” He had once sentenced two lawyers to a seminar on trial practice for filing poorly researched and groundless motions. He would slap his hand with a resounding thwack on his bench and say in a menacing voice, “Now, that’s the end of it! Life is short.”

He was an avid tennis player, and when time permitted he liked to walk up the fifteen flights of stairs to his office for the cardiovascular benefit. He might have had a tall, imperious bearing were it not for a singular deformity—he had a humped back. The year he graduated from Harvard College, in 1948, he had his spine fused because of a painful disk abnormality. Ever since, he’d walked with his knees bent, his back bowed deeply forward at the waist, his head craned upward to see where he was going, like a man carrying a heavy but invisible load.

He was too busy to keep apprised of each new case assigned to him, but the Woburn case was a different matter altogether. He’d read the newspaper accounts of the Woburn leukemia cluster, he’d read about Schlichtmann filing the case, and he’d even seen Schlichtmann on the evening news. He thought Schlichtmann had skirted the bounds of legal ethics with his out-of-court statements, but that, the judge believed, was a matter for the Board of Bar Overseers to consider. He remembered Schlichtmann—tall, angular, earnest—from an encounter three years ago in his courtroom. He had rather liked Schlichtmann then. Certainly he had approved of Schlichtmann’s case. Schlichtmann had represented the Clamshell Alliance, a group that wanted to protest the delivery of a nuclear reactor core to the Seabrook power plant. The protesters had planned to stage a march through the town of Salisbury; they’d gone to the board of selectmen to request a parade permit. Such permits had been routinely granted to other groups—veterans and
Columbus Day marchers—but the chief of police had denied the Clamshell’s request. Skinner recalled that he had ruled swiftly in favor of Schlichtmann’s clients and soundly reprimanded the police chief for violating the protesters’ constitutional rights. Then Schlichtmann had demanded that the town of Salisbury pay his fee.

Judge Skinner had balked at this. “I think your clients ought to take this ruling and run,” he’d told Schlichtmann.

“That’s what I’m afraid of, Your Honor, and I’ll be left holding the bag,” Schlichtmann had replied.

Skinner had smiled. “What’s your fee?”

“Sixty dollars an hour.”

Skinner looked at the town counsel. “I have just one question for you. Is Mr. Schlichtmann worth sixty dollars an hour?”

“I guess so,” the lawyer for the town had replied.

“Then pay him,” Skinner had ordered.

Judge Skinner read Cheeseman’s Rule 11 motion with great interest when it arrived in his chambers in mid-November. In his nine years on the federal bench, no lawyer had ever brought a Rule 11 motion in his courtroom, nor did he know of any other judge in the First Circuit who had heard such a motion. Skinner felt that there were a lot of worthless cases—“junk,” he once called them—clogging the federal docket and contributing to his own immense caseload. He knew about the proposed revisions to the rule, and he thought them an excellent idea. In his opinion, lawyers should be encouraged to use Rule 11 much more often.

The rule was unusual in that it seemed to require the lawyer who had filed the complaint to take the witness stand and undergo cross-examination by his accuser. Such an occurrence was, like a Rule 11 hearing itself, exceedingly rare. A lawyer’s job is to argue his client’s cause, not to act as a witness whose very testimony could, perhaps, result in his client’s case being stricken. But Skinner believed the rule called for Schlichtmann to take the witness stand and answer Cheeseman’s questions. That, he decided, was how he intended to conduct this hearing.

Accompanying the Rule 11 motion was a lengthy memorandum from Cheeseman. In Skinner’s experience, Foley, Hoag & Eliot always
filed long briefs. It was a hallmark of the firm, and it had irked Skinner before. He was busy with other cases, and he did not read Cheeseman’s memorandum thoroughly. He failed to notice on page nine the single paragraph entitled “Barratry.”

The judge asked his clerk to schedule a hearing on the Rule 11 motion. The clerk found an opening in Skinner’s busy trial calendar on Thursday, January 6, at two-fifteen in the afternoon. The clerk notified Cheeseman and Schlichtmann to appear in the judge’s court at that time, prepared for an evidentiary hearing with oral argument and witnesses.

5

Schlichtmann telephoned Cheeseman the morning he received the Rule 11 motion. It was their first conversation. “These charges are ridiculous and you know it,” he told Cheeseman. “This thing about barratry, it’s outrageous for you to attack me personally.”

“No more outrageous than the allegations you’ve made against my client,” said Cheeseman.

“I want you to drop these charges so we can deal with the issues in this case,” said Schlichtmann.

“Dismiss the lawsuit and I’ll drop the charges.”

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

“Then my client intends to bring whatever charges it thinks are appropriate.”

The cool, deliberate tone of Cheeseman’s voice infuriated Schlichtmann. “Listen, you bastard, drop this thing now.”

“No,” said Cheeseman.

Schlichtmann slammed the phone down. He was breathing hard, his face flushed, so angry that his hands shook. Conway had never seen him in such a state. “This guy is an asshole,” Schlichtmann shouted. “If the judge believes him, I could be charged with unprofessional conduct. I could be disbarred.”

Roisman flew up from Washington to discuss strategy for the hearing. Judge Skinner had made it clear in his order that a Rule 11 hearing would require Roisman or Schlichtmann, or perhaps both, to take the witness stand and be cross-examined by Cheeseman. Roisman
believed they had no choice but to comply with the judge. Schlichtmann said he would refuse.

“What if the judge makes you?” asked Conway.

“I won’t go,” said Schlichtmann. “It’s wrong. I’m an advocate for my clients. He can’t make me testify against them.”

“He’ll cite you for contempt,” said Conway.

“I don’t care. I won’t go on the witness stand.”

“Jan, he could throw you in jail,” said Conway. “You know what the Charles Street jail is like?” Conway imagined Schlichtmann, in his polished Bally shoes, his red Hermès tie, his thousand-dollar suit, sitting in a Charles Street holding pen surrounded by drunks, thieves, and drug addicts. “You better bring your toothbrush on January sixth,” Conway said.

It was Conway who came up with the idea of turning the barratry charge against Cheeseman. “It’s based on an
in camera
affidavit, a secret charge. The judge isn’t going to like it. I think he’ll be outraged by it. What if you make that the issue? Maybe it’ll get him angry at Cheeseman.”

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.