A Civil Action (35 page)

Schlichtmann valued Kiley’s counsel even though he and Kiley practiced personal injury law in very different ways. Kiley didn’t feel secure unless he had dozens of cases in his files, most of them small, uncomplicated disputes—his “bread and butter,” he called them. He’d won a
few big and difficult malpractice cases, too, and he was ambitious, but he ran a frugal office with only two assistants. “He counts the pencils when he leaves the office at the end of the day,” Schlichtmann once said of Kiley. And Kiley, watching Schlichtmann risk a small fortune on the Carney case, had said, “I’d wake up in a cold sweat at two o’clock every morning.” As for Woburn, Kiley admired Schlichtmann for taking it on, although he personally would not have done so.

Now, in Patten’s, Kiley saw in his friend’s demeanor all the reasons for avoiding cases like Woburn. Schlichtmann looked wan, almost sickly, and he spoke like a man on the verge of despair. “I feel like I’m drowning,” Kiley heard Schlichtmann say. “I’m in too deep. I’ve got no control over this case, and that scares me.”

Schlichtmann told Kiley about the Woodshed Conference, and about the last hearing, when the judge had seemed on the verge of excluding the Harvard Health Study. He felt, Schlichtmann said, as if he were being overwhelmed by the two big law firms (Facher and Cheeseman each had a staff of a dozen lawyers working on the case by now), by their discovery demands, their constant motions, and their personal attacks. The judge’s magistrate didn’t respect him or his case. Even worse, neither did the judge.

Kiley didn’t doubt the truth of any of this. In his own practice, Kiley tried to avoid the federal courts, which he found much less receptive to personal injury law than the state courts. All the same, he tried to reassure Schlichtmann. “You’ve got to get hold of yourself,” Kiley said. “You can do this, but you can’t do it by yourself. You’ve got to get somebody to help you out.”

Kiley offered his own services, on a part-time basis. He’d had a successful year and he could spare the time. But, mused Kiley, the best thing might be for Schlichtmann to find a law professor, someone who could render advice on the legal theories of the case, someone who could figure out how to get the Harvard Health Study into evidence. “Maybe you’ll have to pay some professor thirty or forty thousand dollars,” Kiley said. “You’ve already spent a million, so what’s another thirty thousand?”

Kiley mentioned a professor at Suffolk who might be interested. Schlichtmann wrote the name down on a napkin. The more he and Kiley talked about candidates, the more animated Schlichtmann became. Yes, Kiley was right! A law professor who would sit with him
at the counsel table during trial, an éminence grise who would command the judge’s respect, whose sentences the judge would be honored to finish. One name led to others. Soon they had compiled a list of half a dozen law professors from Suffolk, Northeastern, and Boston University.

They were working on this list when Rikki Klieman came into Patten’s Bar & Grill. She had not seen much of Schlichtmann since the Carney trial, since that morning when he’d called her in a paroxysm of anxiety. But she felt convinced that they were right for each other and that someday they would be together. She had spent her day in court, defending a client accused of smuggling drugs into the country aboard a fishing boat. She wore a conservatively cut gray suit, hemline to the knees, a pearl necklace, and gold-bangled earrings.

She’d come to Patten’s hoping that she could persuade Schlichtmann to go to Puerto Rico with her, to the First Circuit Judicial Conference. It was a prestigious event, by anonymous invitation only, and this year’s conference, on the beaches of San Juan, promised to be more fun than most. Rikki’s invitation, she happened to know, had come from Judge Skinner, for whom she had clerked after law school. She and lawyers from the large, well-connected corporate law firms routinely got invited. Solo practitioners and plaintiff’s lawyers, ambulance chasers like Schlichtmann, rarely did. But this year, for the first time, Schlichtmann received his own anonymous invitation in the mail.

Rikki had been trying all week to talk him into coming. She knew that he was still involved with Teresa, but she had a sense that this relationship wouldn’t endure. “I saw this as my chance to get Jan alone,” Rikki would say later, with a smile.

Kiley and Schlichtmann were working on their list of law professors when Rikki sat down at the table. She listened awhile, and then she made a suggestion that suited both Schlichtmann’s needs and her own purposes for being here. “How about Charlie Nesson?” she said. “He’s speaking at the conference in Puerto Rico.”

Schlichtmann turned to her in astonishment. “The judge just mentioned him,” he exclaimed. “You know him?”

Rikki said yes, she’d known Nesson for years. She taught at the Harvard Trial Advocacy Program every January, which Nesson had adopted as his special program. In fact, she and Nesson had gone out to dinner
with mutual friends not long ago. “Come to Puerto Rico with me and I’ll introduce you to him,” Rikki said.

The coincidence seemed at first quite remarkable to Schlichtmann. And then, after a few moments, he decided it was not a mere coincidence at all, but a matter of destiny. Clearly, this Professor Nesson, author of articles that the judge himself cited, was the one whom Providence had chosen.

3

Rikki Klieman flew down to San Juan on the following Friday, November 1. The next morning, she went out to the beach, returning periodically to the lobby of the Dupont Hotel to see if Schlichtmann had arrived. When he finally did arrive, early that afternoon, she was there to greet him. Directly behind him, she saw a porter wheeling in a black litigation bag, its sides bowed out with the weight of documents. Her heart sank. It looked as if the bag contained more reading than anyone could hope to accomplish in a month.

She talked Schlichtmann into going to the beach with her. He brought along a large sheaf of documents. “He carted them around with him everywhere,” Rikki would recall later. “He looked so unhappy.” She lay in the sun, listening with half an ear as Schlichtmann talked about the case. All around them on the beach were dozens of pale lawyers and their wives—corporate attorneys of distinction, federal prosecutors, bankruptcy judges, magistrates, district court judges, appeals court judges.

Schlichtmann pestered Rikki about meeting Nesson. He had already checked the hotel registration and found that Nesson had not arrived. That evening he and Rikki went to a party at the Old Fort in San Juan. Schlichtmann looked for Nesson and had a lot to drink. He encountered one of Facher’s partners from Hale and Dorr. The partner, who had consumed a number of rum punches himself, told Schlichtmann that Woburn was a “career-making” case, one that would no doubt lead to fame and riches. “Are you kidding?” exclaimed Schlichtmann, who spent the next half hour telling Facher’s partner how impossible the case was. Rikki wandered off to find a more interesting conversation.
She lost track of Schlichtmann that evening, and she returned to her room late, and alone.

She awoke early the next morning and went to the beach to lie in the sun. Her hopes of kindling a romance with Schlichtmann had not worked out on this trip, but she felt that wasn’t the fault of either of them. Woburn absorbed him completely, and she understood that. She had spent the last ten years of her own life completely absorbed in her career. She wouldn’t give up on him yet. She decided to go on being patient.

Nesson was scheduled to give his talk before lunch, and Rikki wanted to hear him. She had a professional interest in the subject—government confiscation of the assets of drug dealers. She folded her towel and returned to the hotel just before Nesson’s talk began. She wore a loose shift over her swimsuit and took a seat in the back of the room. As Nesson concluded his presentation, Schlichtmann sat down next to her.

“Go speak to him when he finishes,” he whispered.

“Not now,” she said. “I’ve got to change my clothes.”

“Why? You look fine.”

“Jan, just calm down,” she said, and she left for her room.

Schlichtmann went to the dais, where Nesson, surrounded by a small audience, was engaged in conversation with an elderly federal judge named Charles Wyzanski. Nesson appeared to be in his late forties, slightly built, with pale, almost translucent skin. He had luminous hazel eyes and a broad and cerebral brow. His light brown hair, which had grown long, over his ears and down the nape of his neck, was turning gray. Schlichtmann elbowed his way through the group around Nesson until he stood beside the Harvard professor. He waited impatiently for a pause in the conversation, for an opportunity to interrupt the old judge who was relating what seemed to Schlichtmann a complicated and interminable story. As he waited he watched Nesson, who listened to the judge serenely in a manner that made Schlichtmann think of Zen-like wisdom. When the judge finally paused, Schlichtmann impulsively thrust his hand out and introduced himself to Nesson. “I’m involved in a case, maybe you’ve heard about it,” Schlichtmann began.

Nesson had already noticed, out of the corner of his eye, this tall young lawyer, head bobbing above the crowd, an intent and anxious look on his face, homing in on him. Nesson recognized the type. Another fresh-faced young member of the bar seeking free advice, he
thought. Nesson got paid handsomely to give speeches at conferences such as this, but he got no compensation for the advice lawyers inevitably sought afterward. After nineteen years at Harvard and many of these legal conferences, Nesson had become adroit at getting rid of pests. He shook Schlichtmann’s hand and said, “Please meet Judge Wyzanski.” Then he turned and began to make his escape. The elderly judge started to say something to Schlichtmann, who ignored him and took a step in pursuit of Nesson.

“You want some advice?” said Nesson over his shoulder.

Schlichtmann nodded.

“My advice is you should never turn your back on a federal judge.” And then Nesson disappeared into the crowd.

Rikki, freshly showered and wearing a skirt and blouse, came downstairs to find Schlichtmann looking frantic. He had reservations on a plane back to Boston that afternoon. “Time’s running out,” he said.

She told him to find a table for the luncheon session, and then she went in search of Nesson. She spotted him in the lobby, among another group of judges and lawyers. She went up to him and put her hand on his sleeve. “Charlie,” she said, “have lunch with me. I’ve got someone I want you to meet.”

Leading Nesson back to the conference room, she could see Schlichtmann standing at a table, peering anxiously around for her. She felt like a matchmaker, and the irony of this thought amused her. It also made her a little nervous. She worried that Schlichtmann, in his eagerness, would put Nesson off.

She introduced them to each other. Nesson smiled wryly. “We’ve already met,” he said.

As they took their seats at the table, Rikki between the two men, she leaned close to Schlichtmann and said, “Jan, settle down and let me talk.”

Schlichtmann managed to contain himself for several moments while Rikki described the Woburn case to Nesson, who listened and said very little. Schlichtmann mentioned the Harvard Health Study, and Nesson said he recalled reading about it in the newspapers. Waiters came with lunch and by the time the plates were cleared, Schlichtmann had barely touched his food. As Schlichtmann talked, the waiters brought lemon meringue pie for dessert. Rikki watched Nesson pick up a fork and begin to create designs in the meringue. He never
took a bite of the pie, but the designs grew increasingly complicated. She couldn’t tell if this meant that Nesson was interested in what Schlichtmann was saying, or if he was merely bored.

Up on the dais in the front of the room, someone stood to introduce one of Nesson’s famous colleagues from Harvard, Arthur Miller. Schlichtmann kept talking. Miller began delivering the keynote address, and still Schlichtmann talked. Rikki put her hand on his arm, and finally he stopped.

He sat in silent agitation through Miller’s speech, not hearing a word of it. As soon as Miller finished, while polite applause rippled through the room, he leaned over to Nesson to resume his disquisition. But before he could get a word out, Nesson stood to excuse himself. He explained that he had made plans to tour the old section of San Juan with friends that afternoon. “Interesting case,” he told Schlichtmann.

“Maybe we can get together later today,” Schlichtmann said.

Nesson smiled and shrugged. “I’m flying back to Boston this evening.”

“So am I!” said Schlichtmann. “We can talk on the plane.”

But Nesson merely smiled and walked away.

“Jan, don’t try to talk to him on the plane,” warned Rikki. “Just let him think about it for a while. Please. Promise me.”

Ten minutes after the plane took off, Schlichtmann left his seat in first class and went back to coach to find Nesson. He brought a copy of his summary judgment brief and of the Harvard Health Study. “There’s an empty seat next to me in first class,” Schlichtmann said to Nesson. “Come on up. We can talk.”

Nesson shook his head. “I’m comfortable here,” he said coldly.

Schlichtmann pressed the documents on Nesson and then, feeling as if he had done all he could, and perhaps more than he should, he returned to his seat.

Nesson had taught at Harvard Law School for nineteen years. He had known from the age of six that he wanted to be a lawyer. As an undergraduate at Harvard College, he had marked time by studying mathematics until he could enter law school. The subject bored him and he got mediocre grades. In his junior year he took the law school boards, got an almost perfect score, and applied for early admission to
Harvard Law. He was shocked when he was rejected. He appealed to the dean of the law school. He was even more shocked when the dean told him not to bother applying again. High test scores and low grades indicated laziness, the dean said, and Harvard Law did not want lazy students. Nesson framed the rejection letter in a black border, as if it were a obituary, and hung it above his desk. He began studying mathematics in earnest. His grades improved. He applied again to the law school, and this time he was admitted.