A Civil Action (31 page)

Gordon even admired Schlichtmann’s strange attitude toward money. But in that respect, at least, Gordon couldn’t bring himself to emulate Schlichtmann. The specter of penury and financial disaster terrified Gordon. He had tucked several one-hundred-dollar bills in the underwear drawer of his bureau and had stashed ten gold Krugerrands in the filing cabinet in his office, small hedges against whatever the future might bring. When he happened to come across these small treasures, he’d count the bills and heft the Krugerrands, and feel reassured.

Gordon managed the Woburn case expenses, printing out computerized lists of the bills and making certain they got paid. He also organized and oversaw the geologists’ fieldwork on the Aberjona marsh. He had been the one who tracked down the old aerial photographs of Woburn, and he’d made the arrangements for those expensive conferences of experts. When Schlichtmann needed something done immediately, or when something went wrong, he usually called on Gordon, his all-purpose troubleshooter.

It was Gordon who told Schlichtmann that they’d have to see the firm’s banker. By Gordon’s calculations, they would need another half million dollars to get through the rest of discovery and a trial that could last six weeks or more. And that, Gordon told Schlichtmann one evening that fall, was a conservative estimate.

“We’ve got to see Uncle Pete,” Gordon said to Schlichtmann.

Uncle Pete was George Kennedy Briggs II, vice president of the Private Banking Group at the Bank of Boston. Although he had the perfect name for a Yankee banker, all of his friends, colleagues, and clients called him Pete. He did not often wear banker’s pinstripes, preferring instead tweedy sports coats and bow ties. He had an elfin physique and thick, knobby features. When he smiled, which was often, his entire face seemed to light up.

Schlichtmann called him Uncle Pete, but he dreaded seeing him. He’d gotten it into his head that the banker, who was old enough to be his father, disapproved of the state of his finances, although Pete had
never once chastised him. Still, in Pete’s presence, Schlichtmann’s demeanor underwent a drastic change. He always spoke softly, in a meek and timorous voice, and he would quickly defer to Pete’s judgment in all matters. Alone, he could never bring himself to ask the banker for money. Quite the reverse, he always felt an unaccountable urge to give money to Uncle Pete. More than once, in need of a loan, he had offered to pledge the deed to his Beacon Hill condominium, the title to his car, or any other worldly asset he possessed. Pete had always smiled and turned him down. “I don’t need it now,” Pete had always said.

Pete Briggs had overseen the ebb and flow of Schlichtmann’s account for four years, ever since Schlichtmann arrived in Boston. Large sums of money would come in and then quickly disappear, replaced by equally large debts. In thirty years of banking, Pete had rarely seen a personal account like Schlichtmann’s. He handled the accounts of three hundred lawyers in the Private Banking Group, but he spent far more time on Schlichtmann’s account than on any other. Even so, he referred to Schlichtmann and his partners as “the boys,” and he seemed genuinely fond of them. When the bank’s money was at stake, he liked to go to the courtroom to see Schlichtmann at work—“keeping an eye on the collateral,” Pete called it. In the Carney trial, he’d heard Schlichtmann’s opening and closing arguments, and he’d waited in the hallway, watching Schlichtmann grow increasingly nervous as the jury deliberated. “That,” recalled Pete, “was nearly a disaster for the boys.”

Pete had noticed the difference between Schlichtmann the trial lawyer and Schlichtmann the penitent debtor. “You get Jan offstage,” said Pete once, “he’s one of the nicest and most sincere guys in the world. He’s very self-effacing about what he doesn’t know about money and banking.”

To prepare for the audience with Uncle Pete, Gordon drew up a business plan. He mapped out a complete budget for Woburn and took an inventory of all the other cases in the files. There were thirteen in addition to Woburn, and these comprised the firm’s only real assets. Schlichtmann had already borrowed two hundred thousand dollars from Pete, and to get another half million Gordon knew he’d have to tell the banker how much Woburn might be worth.

Estimating the value of a case is somewhat like fortune-telling. One can never predict what a jury might do, but verdicts in other personal injury cases provide some guidance. In the calculus of personal injury lawsuits, a dead plaintiff is rarely worth as much as a living but severely maimed plaintiff. Severe injuries, like those suffered by Carney, usually mean a lifetime as a cripple, often with great pain, big medical bills, and loss of income, items a jury can consider in rendering its award. By this same cold calculus, a dead child is always worth less than a dead adult, especially if that adult had been the family breadwinner or mother to several children.

Past verdicts in Massachusetts suggested to Schlichtmann that a dead child was generally worth less than a million dollars. But he believed that once a jury took into account the long, agonizing illnesses and deaths of the Woburn children—their pain and suffering—the value would rise substantially. When he added to that equation the family members who had also been poisoned by the contaminated water, and the risk they faced of future illness, possibly even cancer, the value increased once again.

From the beginning, Schlichtmann had always thought of Woburn as a twenty-million-dollar case, and nothing had happened to change his mind. He and Gordon drew up a chart of verdict probabilities that ranged from zero—a complete loss—to forty million. Schlichtmann calculated that if the case went to a jury, he would stand a 5 percent chance of losing everything, and an equally small chance of winning forty million or more. The highest probability, according to the chart, was a judgment for the plaintiffs of twenty-four million, or three million for each family.

Schlichtmann hoped to conduct at least one mock trial before the real trial, using ordinary people rounded up from the street, and handsomely paid for their time, as jurors. Mock trials are best at identifying the strengths and weaknesses of a case rather than predicting the size of jury awards, but Schlichtmann had found mock juries to be pretty accurate in the past. For now, though, the chart for Uncle Pete would have to suffice. It looked scientific, even fancy, like a sales brochure for a shiny new product, and Schlichtmann believed in it. His common sense told him it was right. But in truth, it was based on little more than intuition and a hope that everything would go according to plan.

•     •     •

The meeting with Uncle Pete, however, did not go quite according to plan. Schlichtmann, Conway, and Gordon met with the banker in his office at the Bank of Boston, a modern glass and concrete skyscraper three blocks from the federal courthouse. Gordon gave Pete Briggs the Woburn budget, the inventory of other cases, and the chart, but Pete first wanted to settle the matter of the outstanding unsecured loan of two hundred thousand dollars. Gordon had promised Pete that he would use the first installment of the Unifirst settlement to retire that loan.

“You’ve got the Unifirst settlement to pay that off, of course,” said Pete.

“We spent it!” said Gordon, his voice unnaturally high.

Uncle Pete seemed to have trouble catching his breath. Schlichtmann had never seen Pete angry before, and Pete was indeed angry. “I almost died,” Pete would recall some months later.

Schlichtmann began to offer the banker the deed to his Beacon Hill condominium, but Pete interrupted him.

“Wait a minute,” said Pete. “What did you spend it on?”

It had been spent on Woburn, of course. Gordon was prepared for this question. He opened the neatly bound business plan containing all the Woburn expenses, broken down into categories, and his estimate of future expenses.

After Pete calmed down, he agreed that the Woburn case had great potential. And he knew that Schlichtmann had an excellent track record. With Pete, at least, Schlichtmann had always been modest in his estimates of case values.

In the end, Pete agreed to increase the line of credit by half a million dollars. But he needed collateral to show the senior committee upstairs, if that should ever become necessary. Schlichtmann again offered to pledge his condominium, but Pete turned him down. He didn’t like to take the deeds to his clients’ homes. Instead, he had the boys sign over the rest of the Unifirst settlement, a six-hundred-thousand-dollar annuity due in five years, as well as another annuity, this one for a hundred thousand, the last of the money from the Carney case.

Pete wished the boys luck. With uncharacteristic sternness, he told Gordon to keep him up to date on developments in the Woburn case. He had not liked being misled about the Unifirst money.

“Bankers don’t like surprises,” Uncle Pete warned Gordon.

3

Everything about discovery was contentious. Each side filed motions asking Judge Skinner to compel the other side to produce documents, witnesses, and answers to interrogatories. And then each side filed countermotions asking for protection against the other’s demands. These motions, hand-delivered by messengers who crossed each other’s paths, arrived daily, sometimes hourly, at each firm. They seemed to fall like leaves from a tree and settle in a thick pile on Judge Skinner’s desk.

“So you’re at it again,” the judge said wearily to the lawyers. “I’ve been here a fair amount of time,” the judge added, “and I’ve never had a case where there’s been this kind of rancorous dispute over discovery. I hope it’s the last one I have.”

When Judge Skinner did not have time to hear their squabbles, he sent the lawyers down to the third floor, to his favorite magistrate, a judicial officer of lower rank who dealt with routine discovery disputes. The magistrate, a man in late middle age with bony, sunken cheeks and hollow temples, had taken a dislike to Schlichtmann at their first encounter. He had asked Schlichtmann how he intended to prove his case, and Schlichtmann, in reply, had given the magistrate two thick volumes of documents. “You can read that,” Schlichtmann had said. This had infuriated the magistrate, and he was not one to forget a slight. “Every time you come here, you keep saying, ‘You look at those two big volumes and maybe you’ll find something,’ ” the magistrate complained at one hearing. “That certainly doesn’t help me, Mr. Schlichtmann. That doesn’t assist any court.”

Schlichtmann tried to make amends for his unintended insult by flattering the magistrate. “You raised certain questions in your opinion two months ago, and I think you did an excellent job,” he told the magistrate on one occasion.

But the magistrate would have none of it. “That’s not going to get you to first base, Mr. Schlichtmann.”

Facher and Cheeseman benefited from the magistrate’s grudge with Schlichtmann. They filed one motion after another, complaining that Schlichtmann had not turned over test results when he had promised, that his witnesses would not answer questions, that he had arrived late at depositions and had taken too long for lunch. More often than not, the magistrate granted their motions, but when Schlichtmann made a
motion, the magistrate usually denied it. “You’re making an oral motion to take a deposition, Mr. Schlichtmann?” asked the magistrate.

“Yes,” replied Schlichtmann.

“Denied,” said the magistrate.

A moment later, Schlichtmann tried again. He asked the magistrate to compel Cheeseman and Facher to identify their expert witnesses.

“Your motion is denied, whatever it is,” the magistrate said.

“Okay,” said Schlichtmann. “No sense making any motions, I guess.”

“You already did. It’s denied.”

“No sense even coming here,” Schlichtmann muttered under his breath.

“What are you saying, Mr. Schlichtmann?”

“Nothing.”

“Apparently not,” said the magistrate.

“Your Honor,” Schlichtmann said to the magistrate, “do the Rules of Civil Procedure apply equally in this court to defendants as to the plaintiffs?”

“Absolutely.”

“Then I make a motion—and we’ll see if it’s granted or not—that the defendants today tell the court when their experts will be made available so I can depose them.”

“The defendant did not choose to be sued,” said the magistrate. “You brought suit against them. The party that has to defend against your theories—God knows what theories!—should be entitled to find out what they are first. From the beginning of this litigation, I had no idea what your experts would say. You wanted me to go through a two-volume report. They’re trying to prepare a defense.”

“That’s right,” said Schlichtmann. “They don’t have one yet. I’m glad Your Honor recognized that.”

“I didn’t say that, Mr. Schlichtmann! You should be ashamed of—”

“I’m not ashamed of anything I’ve said today.”

“Well, that’s your problem, right?”

“There’s a double standard in this court,” said Schlichtmann angrily. “One rule applies to the plaintiffs, the other rule applies to—”

“If that’s your view, Mr. Schlichtmann, I suggest you file a motion for recusal. I will point out the statute to you. Those other motions are allowed,” the magistrate added.

“My motion as well?” asked Schlichtmann.

“Not your motion. Your motion is denied.”

Schlichtmann muttered something else under his breath.

“You wanted a ruling, Mr. Schlichtmann. You got a ruling.”

“Right, I got a ruling, I certainly did,” Schlichtmann said.

Nowadays Schlichtmann saw daylight only from his office window or while walking to and from a deposition. His hair was turning gray at an alarming rate. Kathy Boyer attributed this to stress and overwork, although it was probably more a matter of heredity. But he had lost weight and grown pale. His tailored suits hung from his gaunt frame and no longer looked tailored. His hypochondria seemed to blossom under the fluorescent lights of the conference rooms. Sometimes he’d worry about his heart, other times he’d worry about cancer. A prolonged headache started him thinking about brain tumors. He felt as if he were suffocating under the weight of the case. He could not hold all the things he had to do in his mind, and he was afraid of forgetting something crucial. In every other case, he’d always felt confident of his mastery of the facts, but Woburn was much more complex than any other case. After a long day he’d fall into an exhausted slumber and dream of numbers—of T cell counts, blink reflex milliseconds, parts per billion of TCE. He’d awake with a start at five or six in the morning, feeling as if he had worked through the entire night. And then, the moment he opened his eyes, he would begin organizing the coming day. Some days, when things went well, he’d feel that he really was in control after all, but the next day he’d realize that it had just been an illusion. “It’s like one of those kiddy cars,” he said to Conway. “They give you a steering wheel but it’s not connected to anything. You think you’re in charge, but you’re not.”