A Civil Action (61 page)

The tropical heat of the day gave way to rain squalls and a dark and turbulent sky. At La Guardia Airport that evening, the shuttle to Boston was delayed because of tornado warnings. As Michael Keating remembered it later, he was standing in the crowded waiting room with hundreds of other stranded travelers. Then, across the room, he spotted
Schlichtmann’s tall, angular form. Keating had no desire to talk to Schlichtmann. He grabbed his bag and pushed open a small door in the back of the terminal. He thought he had gotten away unnoticed, but then he heard Schlichtmann’s voice behind him calling, “Mike! Mike!”

Keating stopped and turned to confront Schlichtmann. They stood next to a garbage bin, foul-smelling and dripping from the squall that had just passed.

Schlichtmann said he regretted that the negotiation had ended the way it did.

“I thought it ended just where it should have,” replied Keating.

“We have to keep talking,” continued Schlichtmann. “You can’t just have ultimatums. You’ve got to have a process.”

Keating listened but said little as Schlichtmann went on talking about how important the “process” was and how they had to find a way to resolve this case to their mutual benefit. “Let’s get together on Monday morning in Boston,” Schlichtmann said, “and have a heart-to-heart.”

Keating couldn’t agree to this without notifying Eustis first. He told Schlichtmann he would call him on Monday and let him know. They parted without shaking hands.

Keating walked across a parking lot and into another terminal. He was puzzled. Only a few hours ago he’d felt certain that the case would not settle and Schlichtmann would go ahead with the second phase of trial. He had taken careful notes when Schlichtmann described what had happened to Patrick Toomey, certain that he was getting a preview of Schlichtmann’s opening argument. And to Keating, it promised to be a powerful one.

Keating found a phone booth and looked up Eustis’s home number in Scarsdale. Eustis’s wife answered the phone. Keating explained who he was. A moment later Eustis came to the line. Keating apologized for calling him at home. “I just ran into Schlichtmann at the airport, and I thought you ought to know about it.”

“No problem,” said Eustis.

Keating related the substance of his conversation with Schlichtmann, and then he said, “I’ve never seen anyone so desperate to settle. I don’t know what’s driving him, whether they’ve run out of money or what.”

Eustis thanked Keating for calling. “Let’s see what happens next,” Eustis said.

3

Back in Boston, the chasm of the weekend loomed before Schlichtmann. On Saturday evening, as the sun set over the Charles River and small boats sailed in the Back Bay, he lay on the bed in Teresa’s apartment. His mind churned. He knew he had to start preparing for the second phase of trial. Details crunched through his brain as he examined the possibilities and pitfalls, a chess game of enormous complexity. Twenty thousand pages of depositions to think about, tens of thousands of pages of medical records and test results. Have I looked at Colvin’s second deposition? he thought. Has Lappe talked with Conibear? Has he talked with Paigen? The T cell assays, the Harvard health study, Cohen’s electrocardiograms, Feldman’s blink reflex studies. An endless, treacherous swamp of detail and evidentiary problems. How many expert witnesses? Twenty, perhaps more. It made the first five months of trial look like a law school exercise in comparison.

Teresa came to the door and asked if he wanted dinner. He said he wasn’t hungry. She made a light meal of omelettes anyway. He ate it like a man famished and asked what else she had. In the freezer, she found a frozen pizza. “I don’t want that. It’s poison,” he said. She heated up the pizza anyhow, and he consumed it all, along with half a bottle of beer. He lay on the bed, holding the remote control for the television in his hand, flicking endlessly through the channels, never pausing for more than a few seconds.

Teresa was in the kitchen when she heard him calling. His voice was urgent and he sounded frightened. She ran to the bedroom. He lay with his legs spread apart, his feet dangling off the end of the bed, one hand on his chest. “I think I’m having a heart attack, I have this intense pressure in my chest, I can barely breathe.”

She felt his pulse, which was rapid but strong. “You’re having an anxiety attack,” she said. She had a prescription for Valium in the medicine cabinet. She broke one of the pills in half and brought it to him. “Take this,” she said. “It’ll make you feel better.”

“What is it?” he asked. She told him and he refused to take it. “I’ve been drinking. It’ll make me hallucinate.”

“Jan, that’s nonsense. You’ve only had half a beer.”

She thought that if he didn’t take the pill, she would. In the kitchen, she poured the remaining beer into his glass and dropped the pill into
it. She used a spoon to crush it. He drank the beer without suspicion. Within half an hour his pace on the television remote control began to slow, and soon he fell into a heavy sleep.

On Monday morning, August 11, Schlichtmann went to the coffee shop at the Meridien Hotel, across from the federal courthouse, to meet Keating. Schlichtmann told Keating that he wanted to make settlement a “positive” event for W. R. Grace. Keating asked why he would want to do that, and Schlichtmann replied, “Because I’m more successful if I’m perceived as someone who can turn a company’s worst nightmare into a positive event, instead of one who wages war.” Keating said that Eustis viewed any settlement—especially a large one—as tantamount to an admission of guilt. The jury had returned a verdict against Grace, and paying money now would make it look as if Grace accepted that verdict. Furthermore, Eustis was concerned about the “shark effect.” A big settlement would induce other personal injury lawyers to seek clients in Woburn and file dozens of lawsuits, hoping to settle for a lot of money.

These arguments all made perfect sense to Schlichtmann, who saw in them opportunity, not obstacles. Money, he deduced, was not Eustis’s foremost concern. How the settlement was perceived—its presentation to the press, and its success in averting future Woburn lawsuits—these issues were more important to Eustis than money.

What if, Schlichtmann suggested to Keating, he could put together a settlement package that would guarantee peace in Woburn?

Peace in Woburn? Yes, Keating thought that might interest Eustis.

“Is it conceivable,” said Schlichtmann, “that there is a figure between yours and mine that might take care of my needs?”

“It’s conceivable,” replied Keating. But Eustis was on vacation now, out sailing solo on Long Island Sound. He could not be reached, and he would not be back at work until next week.

Throughout that week, Schlichtmann conferred with his partners. A new settlement strategy began to take shape. On September 5, when they went before the judge, Keating would file a motion for a new trial. Keating would ask the judge to vacate the verdict on the grounds that
it was against the weight of the evidence. Schlichtmann would consent to this motion. He would let the judge know that his consent was part of a settlement agreement. A new trial would make it look as if Grace wasn’t really guilty. They could even have the families say to the press that Beatrice and chemical companies in north Woburn were responsible for the contamination of the wells.

Kiley liked this idea. “I think it’s a great strategy. We’ll give them anything they want as long as they give us twelve million dollars.”

But Conway was not optimistic. He believed that all Eustis cared about was the money. “It’s very clear. Eustis is afraid that if the number is too high, it’s going to create a shark effect. All these other things are just red herrings. Either they care about them or they don’t. And I don’t think they care.”

“Yes, they do,” insisted Schlichtmann.

Conway was unconvinced. “What if all this stuff is fantasy and they’re not going anywhere but six point six million?”

“Then it’s not going to settle,” said Schlichtmann simply, as if he were merely stating the obvious. “We’ll go to trial.”

A moment of silence followed this statement.

At last Gordon said, “We’re in a bit of a pickle.”

“I think we’re in real trouble,” said Conway slowly.

Schlichtmann looked at his partners. “The money cannot be taken, not six point six million,” he said in a level voice. “I cannot take fees and expenses out of that and go to the families empty-handed and say, ‘Thanks for the privilege of representing you.’ ”

They talked off and on all week, adopting and discarding strategies. The pattern was familiar, a pattern of despair followed by hope and renewal, followed once again by despair. Schlichtmann called Keating and waited several days for Keating to call back. When Keating finally did call, on Friday morning, he left word that he was not authorized to engage in any further discussions until Eustis returned from sailing.

That afternoon, Conway was in his own office, talking with one of the associates, and the secretaries were gathered in the kitchen for a coffee break when the sounds of loud banging and the thud of heavy articles hitting the floor came from Schlichtmann’s office. These sounds were followed by screams. “Save me! Save me! I’m self-destructive! I always knew that!”

Conway and the secretaries came running from every corner of the office. Conway gingerly opened Schlichtmann’s door. Everyone stood in the doorway, looking over each other’s shoulders at Schlichtmann, who was on his knees, behind his desk. He clasped his head and slid to the floor. “Oh, God help me!” he shouted.

The staff gaped wide-eyed at him. For a moment no one moved. Then Schlichtmann, supine under his desk, peered up at them. Slowly he clambered to his knees and rested his head on the desk. “Am I at the bottom?” he asked Conway.

Conway nodded solemnly.

“What is today?”

“August fifteenth,” said Kathy Boyer.

“So we still got fifteen days left in August?” said Schlichtmann. “Good! That’s a whole lifetime.” He looked at the two associates. “How are you two doing?”

“Great,” said one of them without conviction.

“You need direction?” asked Schlichtmann. Then he laughed weakly.

Conway laughed, too, at the thought of Schlichtmann providing direction to anyone in his state.

Schlichtmann rose from his knees and walked unsteadily out of his office. “Okay, I feel better now,” he announced. “I feel much better.”

Peggy Vecchione peeked into Schlichtmann’s office. Notebooks and files, depositions and trial transcripts, letters, memos, bills, pens, pencils and Rolodex cards covered the floor. Except for the computer terminal, which was bolted down, the star litigator’s desk was completely bare.

“At least your desk is clean, Jan,” said Peggy as Schlichtmann walked past her.

4

Schlichtmann stood for a moment in the bright morning sun. He gazed up at the Grace Building, its curved, marble-clad columns slanting upward, like the sinews of a giant tree, forming a small plaza on Sixth Avenue and Forty-third Street. The architecture seemed intended to convey an imposing, implacable power. Schlichtmann felt dwarfed.

On the phone the day before, Eustis had said, “You can come down anytime.” Schlichtmann had brought Gordon along with him. They had walked from the Helmsley to the Grace Building together. At the door, Gordon wished Schlichtmann luck and shook his hand. He noticed that Schlichtmann’s palms were sweaty. Gordon turned and walked across the plaza, and then, on Sixth Avenue, he paused and looked back. Schlichtmann was still standing at the door, gazing up at the building. Gordon waited until he saw him go in, and then he began trudging back to the Helmsley.

Schlichtmann boarded an elevator that was paneled in rich, dark wood. It whisked him up fifty floors, to the executive suites. A security guard buzzed him through a set of enormous glass doors, politely asked him to fill out a form, and gave him an identification badge to wear. Schlichtmann took a seat on a couch in the softly lit room. He surveyed the objects of art on the walls, gleaming like treasures under spotlights. He could hear no office sounds, no secretaries chattering, no telephones burbling, nothing but the soft whisper of the building’s ventilation system. He felt hypervigilant. Everything in this building seemed freighted with menace.

Yesterday afternoon, before leaving for New York, he’d gone to Woburn to visit Anne Anderson. He’d sat with her in the small, dark kitchen of her ranch house on Orange Street, two of her many cats entwining themselves around his legs. Over the kitchen table, he had talked with her about going on to the next phase of the trial. A settlement with Grace, he’d told her, did not look possible. They might still win something in trial, he’d said, but they faced an equal possibility of defeat. The long journey wasn’t over yet, but it was nearing an end. Anne began to cry softly, tears rolling down her cheeks. She wiped them away with a Kleenex. The prospect of taking the witness stand to testify frightened her. She feared, she told Schlichtmann, that she would lose control, break down, cry uncontrollably. Schlichtmann attempted to reassure her, but he felt, to his surprise, tears welling up in his own eyes. They’d sat together for a while in the dark kitchen, at the battered Formica table, both weeping.

Now, waiting for Eustis, it struck Schlichtmann as bizarre, almost dreamlike, the way he had traveled between the two extremes of American society, from the kitchen of a dilapidated ranch house in east
Woburn to this quiet, muted foyer at the heart of one of the nation’s largest and most powerful corporations.

In a moment a woman appeared to escort him down carpeted corridors to Eustis’s office. Eustis, in his shirtsleeves, rose from his desk and came forward, smiling, to greet Schlichtmann. He looked handsome, lean and vigorous, a little sunburned from his week out on Long Island Sound aboard his sailboat. He looked much younger than his years, looked in fact as if he were in his prime rather than nearing his retirement. He occupied a large corner office, windows extending from floor to ceiling, with a view of the skyscrapers of southern Manhattan, the Hudson River and the Palisades. To Schlichtmann, the great size of the office made it appear sparely furnished, almost empty. Against a far wall, a long distance away, as if, thought Schlichtmann, he were looking through the wrong end of a telescope, was a couch and two wing chairs on either side of a coffee table. Eustis’s desk, a delicate eighteenth-century antique that Schlichtmann imagined was French in origin and probably had cost a fortune, was bare except for a telephone and a single piece of paper. Eustis gestured to a chair in front of the desk and Schlichtmann sat there, feeling uncomfortable, his hands on his knees.