A Civil Action

by Jonathan Harr

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Billion-Dollar Charlie

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Harvard Law professor Charles Nesson studies the relationship between proof and truth. He has created the “Blue Bus” theory that asks people to analyze the use of statistics in court. In Nesson’s hypothetical scenario, published in a recent law article, Mr. Smith is driving down a road at night and sees headlights speeding toward him in the center of the road. To avoid a collision, he veers off and hits a tree. He learns the Blue Bus Company operates eighty percent of the buses that travel that road and chooses to sue them for damages, but Mr. Smith can’t actually remember the color of the bus. Nesson claims if this were a criminal case, Mr. Smith would not win, but if this were a civil case in which you prove evidence to be “more likely than not,” he should win. He feels you can’t argue a case based on “good odds.” Juries must decide truth, not probability.

Skinner happens to read this article and calls a meeting with Schlichtmann, Cheeseman, and Jacobs two weeks after the Woodshed meeting. Skinner brings up the article and asks Schlichtmann to speak to its validity. Skinner wants to ensure that Schlichtmann isn’t going to simply use expert testimony to try to prove causation between the families in the area and the chemicals. Schlichtmann isn’t aware of the article and assumes the judge is talking about the Harvard Health Study he plans on submitting as evidence. Careful with his words, he tells the judge that his evidence will be clinically based. But the other lawyers tell Schlichtmann and the judge that they will work to negate the validity of the Harvard Health Study and any evidence like it. 

Schlichtmann doesn’t have time to persuade the judge and defense into believing the Harvard Study. His clients are starting their second round of depositions, and he wants to be present for each one. In this round of questioning, the defense asks about household products and foods that are also known to contain carcinogens, and Schlichtmann knows they will try and show how all chemicals have a minor correlation to health effects, which fact will negate his case.

That Friday, Schlichtmann meets his friend Tom Kiley for their weekly drink. Kiley sees how tired and unhinged Schlichtmann is becoming and offers his help. He tells Schlichtmann that what he really needs is a law professor to help him get the Harvard Study admitted as valid evidence. Not only would this help his case, but Schlichtmann believes a respected law professor would help his reputation with the judge and jury.

Schlichtmann experiences another moment of clarity when top lawyer Rikki Klieman comes into the bar looking for him. Klieman tells him that there is a prestigious legal conference in Puerto Rico. Even though Sclichtmann is still with Teresa, Klieman, who fancies him, uses this as an opportunity to get Schlichtmann alone. Whether by coincidence or not, Klieman mentions the name Charlie Nesson as a possible candidate for Schlichtmann’s new angle. Schlichtmann connects the name to Skinner’s article and feels that this is fate, especially since Nesson will be speaking at the conference.

In Puerto Rico, Schlichtmann refuses to relax. To Klieman’s dismay, Schlichtmann has packed his bags with case files and documents to peruse, and when Schlichtmann arrives on the beach, all he wants to do is meet Nesson. Forgoing Klieman’s advice, he finds Nesson, but the meeting lasts only a few seconds. Schlichtmann begs Klieman to introduce them. She does so at lunch, but it doesn’t seem that Nesson is interested in the case. Schlichtmann learns they are...

(This entire section contains 1294 words.)

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on the same flight back to Boston, but Klieman begs Schlichtmann not to bother Nesson on the plane. Schlichtmann cannot contain himself. He pesters Nesson, describing the case and asking him to join him in first class, but Nesson refuses. After some time, Schlichtmann leaves the Woburn summary with Nesson and returns to his seat.

The reader learns that Nesson has graduated from Harvard at the top of his class, having attained an unparalleled GPA, but this early rise to prominence did not last. By this point, he has fallen behind many of his fellow graduates in terms of fame and monetary compensation. He considers Schlichtmann’s comments about the case and decides to read the summary. He gets up from his seat and asks Schlichtmann what he has to offer him if he works the case.

Back home, Schlichtmann gathers his partners, as well as Kiley and Nesson. Nesson feels this case isn’t about money. It’s about sending a message to corporations, but money is the only language spoken in business. If they win this case, it could change the world. Nesson feels they need to send a message with the amount they are asking for, and he proposes a sum that surpasses even Schlichtmann’s grandiose projections.

At the next court meeting, Skinner doesn’t show his surprise when Nesson joins Schlichtman, but he is somewhat irritated by Nesson’s bold tone. After some consideration, the judge understands the picture Nesson is trying to paint of a case that could alter the landscape of corporate norms. Skinner agrees this could be a landmark case.

The lawyers are coming closer to their trial date, and both sides are working considerable hours to complete discovery. Cheeseman begins to worry about Facher’s age, because he would forgo motions in the judge’s chambers based on exhaustion. Schlichtmann starts sleeping on the couch in his office, not bothering to go home for fear of wasting time. Even Cheeseman is clocking more hours than ever before and hopes he never has to work like this again.

The defense continues their depositions with Schlichtmann’s medical team. They speak with Vera Byers, the immunologist from California, and Schlichtmann’s first doctor on the case, Alan Levin. The doctors respond well to the questioning, but it’s clear Cheeseman wants to delegitimize Schlichtmann’s team.

In the final two weeks of discovery, Schlichtmann attains the list of the twenty-eight experts Cheeseman and Facher hired for their defense. He has little time to depose them all, so he questions the group as quickly as he can. Most of the witnesses know someone on his own medical team, and he feels he can use this to his advantage. One doctor even admits to sending his own patients to Dr. Feldman on a regular basis. In fact, most of the defense’s doctors admit to respecting Schlichtmann’s medical team, but they simply feel his staff are misinterpreting their test results.

When Schlichtmann deposes the defense’s cardiologist, things change. Dr. Gilbert Horton Mudge, Jr., admits that every Woburn family member has cardiac arrhythmia. Mudge decides he wants to conduct his own testing to be sure there is nothing abnormal. Schlichtmann gets another break when he questions Dr. John Coffin, a molecular biologist from Tufts. Schlichtmann backs him into a corner by asking him if he feels comfortable having TCE in his own water supply. Coffin was coached to not answer the question, but the dialogue proves useful to Schlichtmann.

At the same time, the EPA is conducting tests on wells G and H. The prosecution and defense are investing money into this effort, but Schlichtmann particularly needs these results. Gordon, Schlichtmann’s financial adviser, is at the wells every day until it’s finally confirmed that “wells G and H were contaminated by groundwater from the Beatrice and Grace properties.”

Gordon starts crunching financial numbers in the background. They are way over the budget they presented to Uncle Pete, but he feels he can still get Schlichtmann to trial, so long as there are no delays.


The Woodshed


Facher's Plea