Waring 1999 Civil Action

SILVER SCREEN JANUARY FEATURE ARTICLE


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by Rob Waring

A Civil Action–Another Government Bailout?

By Rob Waring - February 1999

[Editor's note: The following commentary reveals some plot details. Readers who have not seen the film may want to bookmark this site and return to read this commentary after they have seen the film.]

A Civil Action, based largely on a non-fiction book by a plaintiff's attorney, has been described as the most accurate portrayal of civil litigation ever to appear on the silver screen. In the film, a small, but high flying plaintiff's personal injury firm takes on a mass toxic tort case. At the helm is a charismatic and overconfident attorney, played by John Travolta. His nemesis, an eccentric, hard-nosed defense attorney, is chillingly played by Robert Duvall.

The film is much ado about economics: the economics of funding expensive pre-trial investigation and discovery by an undercapitalized small firm working on a contingency fee basis. (The firm can only recover expenses as a result of a settlement with the other side.) There is also the economics of civilactiontraqvolta.GIF (8628 bytes) disposing of the environmental waste which is the basis for the suit. (It's cheaper just to dump it in a hole in the ground.) Along the way, viewers are treated to the tension of the high stakes poker and puffery that inevitably accompanies big ticket law suits, with deceit, unethical behavior and bad judgment aplenty on both sides.

The film is compelling in part because it tells the story of a group of people trying to do the right thing, correct the harm done by a polluter, gain an apology for the victims and inflict a monetary punishment that will deter future wrongdoing. In spite of the plaintiff’s attorney's greed and horrific tactical miscalculations, I suspect the film will improve the public image of the plaintiff's bar. In the end, the protagonist is ground down by a system that seems stacked against him and his clients. The plaintiff's attorney is portrayed as an underdog gambler, whose obscene profits in one case are justified by knockdown punches and financial losses he will take in many other suits. It's a dirty business, but how else is justice to be achieved?

"In spite of the plaintiff’s attorney's greed and horrific tactical miscalculations, I suspect the film will improve the public image of the plaintiff's bar."

For me, the most noteworthy aspects of the film occurred at the very end. The first was a toss off, mentioned in a single sentence as the terms of the settlement are read in court. The settlement terms called for secrecy. The brevity of this reference was unfortunate, because I doubt many in the film's audience understand just how tragic this term was, and also how commonplace it is in our legal system. Defendants in civil suits routinely buy the silence of those they injure by conditioning settlement on the plaintiff's inability to discuss the case with anyone else. This means that if a corporation or an entire industry has done something to injure many people, information gained in a suit by one victim cannot be shared with others. Also, the public never learns about the wrongdoing and thus the wrongdoers face no public scorn for their actions. (Very few meritorious civil suits gone awry are rescued by the federal government, as this one was.) Such purchased silence, which most plaintiffs and their attorneys reluctantly sell out of either need or greed, can have the effect of forcing each new plaintiff to reinvent to wheel, and each new plaintiff's lawyer to have to finance that reinvention. Thus, I fear audiences for A Civil Action may come away from the film thinking they understand the workings of the litigation system, when in fact they are still missing some very important pieces of the puzzle.

The second aspect was the government rescue referred to above. Although civil defendants can buy secrecy as to other litigants, they cannot so shield themselves from criminal liability. The film ends with Travolta's character sending the case files to the Environmental Protection Agency (EPA). As viewers see the many boxes being packaged, then delivered by truck to the EPA, text appears on the screen explaining that after an EPA investigation, the defendants were forced to pay eight times the amount of the civil settlement in fines and clean-up costs.

So, in the end, justice was done. Quick: think, when was the last time you saw a movie, set in any time since Watergate until the present day, not involving the military, that positively depicted the government? My last recollection of a film that depicted the EPA was the 1984 release, Ghostbusters, in which the EPA was portrayed as bureaucratic and incompetent. In that film, enforcement of EPA rules threatened public safety.

A this point, I digress to a personal story. The year was 1981, and I visited a mentor from my youth, a Boy Scout leader who worked in the field of waste management research. He told me that he had interviewed for the position of chief scientist for the EPA in the Reagan administration. He arrived for the interview expecting to discuss his scientific credentials, which were impressive, but to his dismay, no other scientists were in the room and science was not on the agenda. The interviewers were all White House lawyers who (not too delicately) inquired about his willingness to be a "team player." He sidestepped most of their questions and politely excused himself. Thus began the Reagan administration's dismantling of the EPA. Most of the experienced upper management departed and the agency was rendered impotent for years.

"Thus, I fear audiences for A Civil Action may come away from the film thinking they understand the workings of the litigation system, when in fact they are still missing some very important pieces of the puzzle."

Derision of government agencies, except those connected with the military, was the cornerstone of Reagan's political strategy. While obviously capitalizing on some current of public cynicism still flowing from the spring of Watergate, his repeated anecdotal references to the failures of government agencies from the bully pulpit of the Presidency also fostered public mistrust in those agencies.

Thus, the conclusion of A Civil Action contains a long overdue wake-up call to the public, infrequently seen on the silver screen: big government is sometimes the only force that can stand up to big business. Our civil justice system is sometimes inadequate protection from the forces of greed and corruption.

More Sites of Interest

Official studio web site link A Civil Action

The Internet Movie Database Go...

Jan Schlichtmann, A Civil Action - meet the attorney that John Travolta recently portrayed. Hear about his story, his newest cases and his personal magazine

Beyond A Civil Action - Woburn case issues and answers from W.R. Grace and Company.

Yahoo! Movies: A Civil Action

Scenes from the Making of "A Civil Action" - information and photographs on the making of the film.

A Civil Action - official site from Touchstone.

Civil Action, A (1998) - IMDb page.

Boston Globe: "A Civil Action"

Boston Magazine: A Civil Actor - John Travolta talks about his role as a controversial attorney in "A Civil Action."

Photo Gallery - of actors attending a Boston charity screening of locally filmed "A Civil Action."

Hollywood vs. the Truth - Walter Olson's opinion piece from the Wall Street Journal.

Woburn Resources

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