Thursday, February 4, 2010

Law Goes to the Movies

When my law school first accepted me and I sent in the money that reserved my spot, I started receiving all sorts of school information in the mail. The materials didn’t seem all that interesting, but I read it all. Every bit of it.

Somewhere in all the descriptions of financial aid, assignments for the first week, and invitations to the orientation dinner, was a brief request from the associate dean that we rent the movie A Civil Action starring John Travolta and Robert Duvall and view it sometime over the summer. We’d view it again during orientation week and discuss it (no doubt using the semi-Socratic method). We were also “encouraged” to read the original book by Jonathan Harr before orientation week. “Encouraged” to read a book for law school? Is that an assignment?

I had seen A Civil Action on television years ago, but rented it anyway and watched it again without the commercial interruptions. I also went to my local Borders bookstore and purchased a new copy of the 500-page book. I read it twice that summer.

I figured I might have an advantage here, since I used to work as an editorial assistant for several famous movie critics, but more importantly, middle-age has set in and reading fat books from cover to cover is one of the pastimes that bored, frustrated middle-age adults acquire and even enjoy. Those young 1Ls won’t be able to compete with me there. Another incentive is that Harr’s book is really a terrific read. It won the National Book Critics Circle Award for Nonfiction. It reads like a great novel, even though it is a true story.

It’s all about a case involving a chemical spill in Woburn, Massachusetts, and a fairly young personal injury ace lawyer named Jan Schlichtmann (played by John Travolta in the film; the film was directed by Steven Zallian, who also wrote the screenplay for Schindler’s List and for several other major films). Schlichtmann’s nemesis is a crusty, irritable codger of a lawyer named Jerome Facher (played by Robert Duvall, who for his efforts received an Oscar nomination for best supporting actor). The cast was rounded out by lots of big names: Tony Shaloub, William Macy, Kathleen Quinlan, James Gandolfini, and Sydney Pollack. John Lithgow played Judge Walter Skinner, who presided over the tedious, never-ending case with a charming smile and glint in his eye. Dan Hedaya had one of the most powerful performances as the tough, defiant tanner whose plant is accused to dumping toxic chemicals. That’s the film, anyway.

For the book, Harr actually tagged along with Schlichtmann during the trial and many events of Schlichtmann’s personal life at the time. The difficult part of the case was trying to prove that eight children and several adults came down with leukemia as a result of chemical spills from two major corporations in Woburn. There were mountains of documents for Harr to read, from extensive testimony by scientists and plant workers, to up to eight different studies related to this investigation. There was medical data, chemical data, geological data, statistical data, and an equation for the natural flow of water. Still, the best part of the book was Harr’s personal involvement in the case as he shadowed Schlichtmann and even became personally involved in many of the case’s bizarre episodes.

Like the PG&E case in the movie Erin Brockovich, lawyers must prove cause and effect. No one knows what causes leukemia in the first place, so how were lawyers going to prove that the chemical in question, trichloroethylene or “TCE,” made people sick? There are still those scientists and lawyers in the PG&E case that claim that the court relied on “junk science,” since there was no scientific way to link the illnesses to the chemicals.

Then there was the problem of the two factories in question, owned by the large companies Beatrice and Grace. During the discovery portion of the case, the workers claimed they never used TCE, even though it had been found in the groundwater nearby. This was one of the really sticky points for me: they were lying under oath! Eventually, the workers changed their testimony and admitted they did use TCE, and they even admitted that at one point, several barrels of chemical waste were buried on the property. This was all depicted in the movie. The book did mention that the tough tanner (played by Dan Hedaya) was finally charged with perjury, but no one else was. That was one of the issues I wanted to discuss in a semi-Socratic way.

I had also wondered if one could even raise the issue of malice, since these workers even admitted that they knew they were breaking the law by dumping the chemicals. These workers also knew that at least the chemicals were dangerous to human health. At the time I didn’t know that if you do something for your profession, it can be argued that malice was not involved. Still, we all have buddies who dump their motor oil into vacant lots thinking that one lousy little spill isn’t going to hurt anyone. These people should know better, but do their deeds anyway, all under the pressure of “getting the job done.”

What didn’t come out in the movie were things I found most interesting about this case. For example, there is an entire chapter in the book on Rule 11 of the Federal Rules of Civil Procedure. This is a rule that allows the court to inflict punitive damages on any lawyer who files a frivolous law suit. This was brought up briefly in the film as a joke, and John Lithgow as Judge Skinner sort of laughs it off and dismisses it as such. The fact is that the real Judge Skinner did not think Rule 11 was a joke and in the end actually ruled that Schlichtmann had filed a frivolous law suit. I suppose it would have made the film too complicated, but what a major omission in this film!

Another thing about the film is that it left out an important character in the story, a famous lawyer who joined Schlichtmann’s team named Charles Nesson. It was Nesson who proposed that the lawsuit should ask for a half billion dollars (or one year’s combined profit from the two companies, Beatrice and Grace). He based this seemingly astronomical number on his own philosophy of what companies should owe in cases like this. In the film, Schlichtmann is depicted as rashly springing this number on his opponents during an important negotiation meeting to the surprise of his partners, with whom he did not consult. Of course, this makes Schlichtmann look like he’s out of control, although this never happened.

The most outrageous ommission in the film was that, according to Harr, Facher had withheld evidence during discovery. The defense team of lawyers had financed a 60-page study that according to the rules of discovery was supposed to have been disclosed to the plaintiffs. One of Facher’s colleagues was found guilty of deliberate misconduct over this matter, but certainly this incident as described in the book made Facher look much more unethical than Duvall portrayed him in the film.

These were my observations, anyway. Was I really prepared to share them to a lecture hall filled with bright young 1L students?

So orientation at my school commences and the associate dean, who also showed film clips from the Paper Chase and Legally Blonde, screened the film A Civil Action for us. When class discussion about the film commenced, I was one of the first to raise my hand. I began to talk about how the book differed from the film and the professor adjudicating the discussion stopped me and said, “well, if you’ve read the book...” as if I had done something wrong. I looked down the row I was sitting in and sure enough saw only one shy girl with a copy of the book in front of her. No one else apparently had read it--including the professor! And I thought they had “encouraged” us to read it!

This was my first bitter lesson in the semi-Socratic method: survival of the most loquacious. I tried to raise the issue of Facher’s character, but, alas, was shouted down--after all, based on Robert Duvall’s portrayal, what was there not to like about Facher? Was it really relevant if we like or dislike a lawyer? Not to the law. The professor responded to my issue of malice by neither agreeing or disagreeing with me, but by saying that she was considered one of the most respected experts in malice in her field.

There was little else to add to this class discussion, except what were the cursory impressions of the most outspoken students after seeing the film--for the first time. Are you listening to this Socrates? This is being done in your name!

At least I got to express that I felt justice had not been served. Schlichtmann and his law firm were completely ruined by this case, and although the government finally stepped in and penalized Beatrice and Grace for their misdeeds, the general feeling I got from both the film and book is that the families of the victims were never adequately compensated. Those lawyers advocating “junk science” would disagree with me, but certainly there were other things that entered the realm of what could be called paranoid conspiracy theories.

Several times in the book, Schlichtmann appears to break down and all but accuse Judge Skinner of being on the take. Harr frames these statements in the book as if they were coming out of the mouth of a man on the verge of insanity, but why has it become such a stretch to even suspect that such judges could be improperly influenced? Harr never even considers this, even though he carefully depicts the unjust way Judge Skinner divided the trial into sections, allowing Beatrice to be acquitted before the victims could even testify. Perhaps Harr feared some sort of lawsuit had he seriously considered bribery in this case. I personally don’t think Schlichtmann, after what I read, would have broke down far enough to be clinically paranoid--even if his black Porsche was being repossessed and he didn’t have enough money to pay his tailor. It is an ommission on Harr’s part to not go into detail as to why Schlichtmann thought Skinner had perhaps been bribed.

As a distant note of irony for conspiracy theorists, the book also mentioned that Schlichtmann had worked nine months for his criminal law professor at Cornell, G. Robert Blakey, for the House Special Committee on Assassinations in the late 1970s. This was the committee that re-investigated the assassinations of John F. Kennedy and Rev. Martin Luther King, Jr., and, although they did not solve these crimes, came up with new theories and found both murders to be the result of conspiracies. Blakey stepped in at the last minute, under pressure it is alleged, to soften the stance of the original, tougher prosecutor, Richard Sprague.

I’m old enough to have seen these hearings live on television. Maybe we should have watched tapes of those during orientation instead of this movie. Or maybe we should leave movies to our leisure and not try to teach law from them.

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