In Toxic Tort Litigation, Truth Lies at the Bottom of a Bottomless Pit  

by Michael Asimow - UCLA Law School (February 1999)

   According to the new film A Civil Action, the answer is a resounding no. As defense counsel sagely observes, truth lies at the bottom of a bottomless pit--depths the trial process cannot hope to plumb. Relying on the adversary system and lay juries to find the truth simply compounds the disaster and creates more tragedy. Jonathan Harr's marvelous 1995 book told the story of the Woburn litigation in gripping detail. The film dramatizes the human side of the litigation, while presenting the realities of complex tort litigation more successfully than any other film.

   Jan Schlictmann runs a successful boutique plaintiff's personal injury firm. He impulsively decides to represent the Woburn plaintiffs, a catastrophic error. Schlictmann is shown to be a person who is fanatically devoted to his clients but almost totally lacking in judgment, especially about money. To prepare the Woburn case, Schlictmann has to front the cost of elaborate medical and hydrological studies. He spends money freely, ignoring all danger signals. Three and a half million dollars later, Schlictmann and his partners are flat broke. They have lost their homes to the bank and toil in a dark and empty office. And the trial has just begun.

   Schlictmann is up against two major Boston law firms and two able antagonists, the wily Jerome Facher of Hale & Dorr, who represents Beatrice, and William Cheeseman, of Foley, Hoag & Eliot, who represents Grace. These guys play for keeps and can bring unlimited financial and personal resources to the fray. Needless to say, Schlictmann's tiny firm is hopelessly outgunned. Even worse, the case is removed to federal court and heard by Judge Walter Skinner, who has a personal relationship with Facher and despises personal injury lawyers.

   Popular culture occasionally depicts plaintiffs going up against big hardball-playing defense firms. Normally, the result is a Hollywood happy ending. In The Verdict, for example, Frank Galvin overcomes alcoholism and incompetence, as well as the defense's dirty tricks, to win a medical malpractice case--but only by chicanery and incredible luck. In Class Action, Jedediah Ward wins an exploding automobile case against a big firm that employs all sorts of unethical tactics--but only because a defense lawyer betrays her client. On TV's The Practice last year, Lindsay Dole somehow gets a cigarette case to the jury and wins bigtime. And in John Grisham's The Runaway Jury, another cigarette case is successful, despite defense chicanery, but only because of outrageous jury misconduct.

   A Civil Action dramatizes the gritty details of civil litigation better than any other film. Discovery, for example, is shown as it really is--costly, tedious, and exhausting. With nobody to cover the endless depositions for him, Schlictmann gets worn down and loses his temper. The discovery process does turn up one truthful witness, however--a Grace employee who witnessed the dumping. The rest of the defense witnesses claim they never heard or saw any dumping at all. Class Action and The Rainmaker also had discovery sequences, but they did not capture reality nearly as well.

   Similarly, the film graphically depicts the frightening world of settlement negotiations. The Verdict also contained a fine settlement sequence, in which another biased judge tried to browbeat the plaintiff's lawyer into taking a lowball settlement offer. A Civil Action is better, because it focuses on the very real and scary problems of deciding how much to ask for and how to get to the bottom line. By grossly misjudging the value of his case, Schlictmann dooms his clients to a jury trial of a hideously complex case.

   Judge Skinner trifurcates the issues and requires the jury to answer detailed interrogatories. The first phase concerns whether the companies dumped toxic waste and whether it migrated to the wells. The second phase concerns whether toxins in this concentration can cause leukemia. The third phase concerns plaintiffs' damages. Splitting up the issues is not uncommon in complex cases, because it simplifies the trial process. If plaintiff loses in any phase, the trial stops. However, the timing of Judge Skinner's critical ruling (just before trial begins) seems dubious. More important, the film shows how devastating the process of splitting up the issues can be to the plaintiff. The jury never gets to hear the parents testify about the agonizing deaths of their children--the evidence that would have made all the difference (and which Facher vowed the jury would never hear). Instead the jury endures highly technical expert testimony and perjured accounts of whether any dumping ever occurred and must answer mysterious sets of interrogatories about the precise dates that dumping and well contamination might have occurred. .

   Facher is a master of a typical defense tactic: the relentless use of evidentiary objections. Indeed, he tells his trial tactics class at Harvard that if you fall asleep during a trial, wake up objecting. The result is that Schlictmann never develops any momentum in the presentation of his case. The constant wrangling over evidence distracts and frustrates the jury. Once more, the adversary system is shown as the enemy of truth finding.

   The result of the trial was disaster for the plaintiff. Because of consistent perjury by the owner and employees of the tannery owned by Beatrice, Schlictmann cannot prove that it dumped anything. The jury verdict in phase 1 therefore is for Beatrice but against Grace. Even the favorable Grace verdict contains some very unfavorable findings about the dates of contamination, raising the definite possibility that Grace could avoid phase two. Desperate and out of money, Schlictmann is browbeaten into accepting a low-ball settlement offer from a Grace executive who handles the negotiation masterfully. Schlictmann's clients turn against him, his law firm breaks up, and he has to file for personal bankruptcy (we see the deeply humiliating bankruptcy hearing). His life and career are shattered.

   The adversary system and jury trials may produce an acceptable brand of justice. Perhaps it's the way to go in criminal law, where we willingly tolerate inefficiency and we seek a community judgment on the defendant's conduct. But the adversary system, which consists of teams of attorneys trying to hammer each other and conceal as much of the truth as they can, is hopelessly inept when employed to discover truth in matters of scientific controversy. Does anyone believe that justice is served by relying on adversarial lawyers, passive and inexpert judges, and lay juries to resolve complex and inherently unanswerable scientific questions? It's bad enough when the two sides are equally matched, but the situation is utterly hopeless when one side is vastly outgunned. When a biased judge and plenty of perjury are mixed into the brew, the outcome can only be more victims and more disaster but little or no justice.