A Civil Action (33 page)

Schlichtmann arrived at the judge’s chambers with an entourage from the office—Conway, Crowley, Kathy Boyer, Peggy Vecchione, and several others—who came along to lend moral support. Facher was already seated in the first chair on the right side of the table, immediately adjacent to the judge’s chair at the head of the table. He had come with an entourage, too—Jacobs, Frederico, and another associate—who occupied the remaining chairs on that same side of the table. Across from them sat Cheeseman and his partner Marc Temin and two other colleagues. Schlichtmann and his retinue were the last to enter the room. Schlichtmann took the chair at the far end of the long table. Conway, Crowley, and the others gathered around him on folding chairs. Facher, who seemed in high good humor, said something to Jacobs, who smiled. Facher chuckled. Schlichtmann sat in silence.

Judge Skinner appeared at the door, looking pale and angry. He halted abruptly and glared at the gathering of lawyers, his stooped frame bent at the waist. He waved his arm in an impatient gesture. “Clear it out,” he said. “One lawyer for each side.”

Facher and Schlichtmann remained seated as the others stood to leave. Kathy Boyer bent down to whisper reassurance in Schlichtmann’s
ear before she left. Cheeseman and his partners stood and consulted in low voices for a few seconds. Then Temin, who had attended the preliminary depositions, took a chair beside Facher.

The door closed. Judge Skinner looked down the length of the table at Schlichtmann. “I’m going to lower the boom on you, Mr. Schlichtmann.”

Schlichtmann cleared his throat. “Judge, if this is going to be a hanging, I want the court stenographer here to record it.”

“You don’t want a court reporter for this,” murmured Facher.

“I will not tolerate behavior of this sort,” said the judge. “I’ve read things in these depositions—outrageous things—that I’ve never read before, and I’ve been here quite a while. Swearing on the record, instructing witnesses not to answer, counseling witnesses on their answers …”

“Judge,” said Schlichtmann, “do you know what this is all about? I’d like to explain what—”

“I know
exactly
what this is about, Mr. Schlichtmann. These are depositions.”

“That’s not exactly right, Your Honor. These are not regular depositions.” Schlichtmann, alone at the far end of the table, felt at a disadvantage. He wanted to move up closer to the judge. He said, “Your Honor, can I come up there and sit next to you?”

Skinner looked momentarily surprised. “Yes, of course.”

Schlichtmann stood. He heard a loud rip. He looked down and saw that the lining of his suit had caught on a brass tack in the upholstery of the chair. “My God,” he said softly, “that’s not a good sign.” When he looked up, he saw the barest hint of amusement cross the judge’s lips. It passed in an instant and Skinner’s expression turned stony again.

Schlichtmann moved to the empty chair beside the judge and tried to explain the circumstances of the depositions. He showed the judge the page in the transcript where he’d said, “I’m sorry Judge Skinner wasn’t party to the agreement.”

But the judge was not mollified. “There is no excuse, no excuse whatever, for this sort of conduct, no matter what sort of agreement you had. Swearing like that in a deposition.”

“I was wrong to do that,” admitted Schlichtmann, doing his best to appear contrite. But he could not stop himself from adding, “But I had a reason to swear.”

“I warn you, Mr. Schlichtmann, I will deal with this in a way that will make headlines in
American Lawyer
if it happens again.”

Schlichtmann nodded, his head bowed, again contrite.

“You are to say nothing—nothing!—in these depositions except to object to the form of the question. Do you understand that?”

Facher spoke again, for only the second time. “Your Honor, I don’t see how we can possibly continue with discovery in this way. Mr. Schlichtmann wouldn’t even get on the elevator with me as we were coming up here.”

This was true. When Schlichtmann arrived at the courthouse that afternoon, he and Conway and the others had encountered Facher and his team at the elevators. An elevator door had opened, and Facher had gotten on. Conway had stepped forward as if to board the elevator too, but Schlichtmann had grabbed him by the arm and pulled him back. They’d stood for a moment, a frozen tableau, facing each other, Schlichtmann glaring at Facher. And then the elevator door had closed.

The judge cast a baleful eye on Schlichtmann. “Mr. Schlichtmann, let’s have no more of this. You’ve got to get along with each other.”

Schlichtmann knew now that the judge had done all he was going to do. “You’re absolutely right, Your Honor,” Schlichtmann said, nodding vigorously in agreement. “I think Mr. Facher and Mr. Temin and I should try to resolve this. Perhaps Your Honor could give us a few minutes to talk about it between ourselves?”

The judge considered this. “I think that’s a good idea,” he said finally. He gave Schlichtmann one last stern gaze of warning and then rose from his chair and left the room.

The worst had not happened. Schlichtmann felt that he had narrowly escaped disaster, but his sense of relief was mingled with defiance. He looked at Facher and said, “You’re not going to knock me out of this case. We’re going to trial in February. Your client’s property is soaked with solvents.” To Temin, who had not said a word throughout the entire hearing, Schlichtmann said, “And your client is going to be indicted by the grand jury. If you’re hoping that I’m going to run out of money, you’re wrong. We’ve settled with Unifirst.”

In a soft voice, almost as if he were speaking to himself, Facher said, “I suspected something like that was happening.”

“I’ve got enough to go the distance, and I’m going to get a jury in February,” continued Schlichtmann. “We better start trying to work
together, because sooner or later we’re going to have to sit down and talk about whether we want to settle this thing.”

4

Facher took to calling the meeting in Judge Skinner’s chambers the Woodshed Conference. Whenever he felt that Schlichtmann had transgressed again, Facher mentioned that day to the judge. “I don’t have to remind Your Honor of that little meeting back in the Woodshed,” Facher would say.

Facher wondered how much money Schlichtmann had gotten from Unifirst. He could have asked, but he doubted that Schlichtmann would have told him. He had other ways of finding out. On the whole, he viewed the Unifirst settlement as an encouraging sign—it meant that Schlichtmann really was willing to settle rather than go to trial. And it seemed to Facher that now, after being taken to the Woodshed, Schlichtmann might welcome the opportunity to settle the case against Beatrice. As for Cheeseman, he would have to look out for himself and his own client. Facher might cooperate with him from time to time, when it suited both their aims, but he owed Cheeseman nothing.

It took Facher one phone call to find out on good authority that Schlichtmann had gotten a million dollars from Unifirst. This, too, seemed propitious. Facher liked to boast that he had never paid more than a million dollars to settle a case, but in this instance he thought it might be worth a million dollars to get Beatrice out of this case. He called Schlichtmann one evening, a few days after the Woodshed Conference. “You got your money from Unifirst?” Facher said.

“Yes,” said Schlichtmann.

“You want some more?”

Schlichtmann laughed.

“Come on over. I’ll give you some.”

Schlichtmann suggested that they arrange a meeting at a neutral place, the Ritz-Carlton, for example, with what he called the “decision-makers”—Beatrice executives and the corporation’s insurance agents.

Facher brushed this aside. “That’s too complicated. I do it the old-fashioned way. Come over to my office and let’s talk.”

Facher met Schlichtmann in Hale and Dorr’s opulent reception room on the twenty-fifth floor. It was after seven o’clock and the offices were quiet. Schlichtmann had brought Conway and Gordon with him. Facher did not mind that. He motioned for them all to follow him into his office. He sat behind his desk, and Schlichtmann and Conway sat across from him, their coats folded in their laps. Gordon took a chair by the door, near the small refrigerator in which Facher kept leftovers from the firm’s weekly buffet. The office itself was small, too cramped for four people. “Some lawyers have very pretentious offices, big and sweeping,” Facher said, adding that he had been offered just such an office many times but had turned it down. “I don’t like waste,” he said.

The office was cluttered with piles of paper and baseball memorabilia. A major-league bat, split at the handle, served as Facher’s doorstop, and a ball signed by Red Sox players occupied a prominent spot on his desk. On top of the bookcases and filing cabinets were souvenirs from his previous cases. Facher was in no hurry to get down to business. He noticed Schlichtmann looking around curiously, so he showed Schlichtmann a scale model of a railroad boxcar, a gift from the Southern Pacific Railroad, for whom he’d won a case. On the walls, Facher had hung his diplomas and pictures of himself with clients and colleagues from earlier years. Looking at the photos, Schlichtmann thought that Facher had not changed much. He had the same heavy-lidded eyes and lugubrious face, the same pursed lips. As a young man, Facher had been a bit heavier around the shoulders and chest and slightly fuller of face than he was now. Facher took particular pride in a framed photograph of one of his two daughters, which sat on the credenza behind his desk. The woman in the photograph appeared a few years younger than Schlichtmann. She smiled a thin, wan smile.

“You’re married,” Schlichtmann said with mild surprise, realizing at that moment that he’d never thought of Facher as having children and a life outside of the law.

“No,” replied Facher. His marriage, he told Schlichtmann, had ended a long time ago. Facher picked up a spongy rubber ball, tossed it in the air and caught it. He swiveled his chair around and threw the ball against the wall, catching it with both hands cupped cautiously as it bounced back, like a man catching a raw egg. “This is what I do to relax,” Facher said. As he threw the ball he talked. The case against
Beatrice was no good, he told Schlichtmann. The ball thumped against the wall. There was no evidence that the tannery had ever used TCE (thump). Riley had never dumped anything on the fifteen acres (thump). Riley was a victim of midnight dumpers, just as the families were victims (thump). “You’ve got a lousy case, and you know it.”

Schlichtmann admitted that the case against Beatrice was not as strong as the one against Grace. But it was not, he told Facher, a “lousy” case. The fifteen acres were saturated with TCE and other contaminants. “I think Riley dumped tannery waste on the fifteen acres. I’ve still got time to develop the case.”

“You don’t want me in this case,” said Facher. “You’ve got Grace, and one deep pocket is enough. I’m only going to hurt you. I’m giving you a chance to get rid of me.” Facher added that he could not match the Unifirst settlement. “I don’t have that much to give you.” He thumped the rubber ball against the wall.

It was obvious to Schlichtmann that Facher had found out how much Unifirst had paid. He thought that Facher was acting in an arrogant, insulting manner, every thud of the rubber ball like a slap. But Schlichtmann didn’t let himself feel offended. The first goal in any negotiation was to keep talking, and talking to Facher was the first step to a real negotiation. “We don’t have to talk numbers now,” said Schlichtmann. “Let’s get the decision-makers together first.”

“You want the decision-maker?” said Facher. “I’m it. You want Mr. Beatrice Foods? He’s sitting right here. Tell me what you want. Make it reasonable, and I’ll accept, and we can get on with our lives.”

“We can’t just throw numbers at each other,” said Schlichtmann. “That doesn’t work. We need to set aside some time so we can discuss this—your people and my people—in a neutral place.”

Facher grunted at this. “Why don’t you bring your clients up here? They’re the decision-makers, aren’t they? Let me hear them say no to a million dollars.”

Schlichtmann demurred. They had reached an impasse. Facher began telling stories about his past cases, about the Southern Pacific case, about the Saxon Theatre case. He didn’t mention the Baltic Birch case, which he had tried in front of Judge Skinner several years ago and lost, the last case that he had lost. Again he asked Schlichtmann for a number, and Schlichtmann again refused to give him one.

Facher was exasperated. “I don’t understand why you won’t give me a number, any goddamn number.” He reached into his hip pocket, pulled out his wallet, and slapped a twenty-dollar bill on his desk. He leaned back in his chair. “What if I put six zeros on the end of that. Would you take it?”

Twenty million dollars.

Schlichtmann laughed but did not answer Facher’s question.

The twenty-dollar bill remained on Facher’s desk, directly under Conway’s nose. Conway felt tempted to pick it up and put it in his pocket. He had only a few dollars in his own wallet, and not much more in his bank account. Twenty dollars would pay for dinner tonight. It was after eight o’clock and Conway was hungry. It seemed obvious to him that this discussion was going nowhere.

Facher had a warning for Schlichtmann before he left. “You think you’re going to put those families on the witness stand and break everybody’s heart. You think the jury’s going to pull out their handkerchiefs and dab their eyes.” Facher shook his head resolutely. “It will never happen. Those families will never see the light of day.”

Schlichtmann regarded Facher’s parting words as an idle threat. He did not give them a second thought. He could see no possible way that Facher could stop the families from telling their stories once he had a jury impaneled.

He had survived the Woodshed, but the entire episode left him unnerved. There was an enormous amount of work to do in the coming months, and he could not afford another misstep. He had an ominous feeling about the judge. It seemed to him that Skinner treated Facher with more respect and deference than he accorded him. Something the judge had said about Facher at the Rule 11 hearing, three years ago now, had stuck like a burr in Schlichtmann’s memory. He recalled the judge saying, “I can’t let Mr. Facher’s judgment be substituted for mine, although I ordinarily would give it great respect.”