1Civil Procedure I: Professor Schwartz’s Class – Fall 2013 A Reader’s Guide to A Civil Action A Civil Action is a unique work of non-fiction. Although it’s a 17-year-old book about a more-than-20-year-old case, it remains a powerful, unstintingly honest and still largely current look at the American system of civil justice. Jonathan Harr, a very talented writer, was given “inside access” to behind-the-scenes proceedings, particularly those on the plaintiffs’ side, while the case was still going on. Because the rules of attorney confidentiality don’t normally allow this, it is quite likely that never again will there be such a skillfully written, blow-by-blow account of a civil suit. Reading it now for the sixth time, I still find this book compelling.
Our Civil Procedure course will draw on this account and the underlying case, Anderson v. Cryovac, from time to time throughout the semester as a source of illustrative examples and class assignments. Therefore, it’s important that you read it in full before the beginning of the semester, so that you can understand the class discussions and assignments drawing on the book.
How closely you read A Civil Action is up to you. There will be certainly be sufficient time for you to review relevant portions of the book as needed during the semester. But to get the most out of the book, I recommend an “engaged” rather than a passive read-through. By that I mean that you try to write down your thoughts and questions about what you read as you go along.
To help you get more out of the book, this “Reader’s Guide” draws your attention to certain points and poses a few questions. Reading the notes and answering the questions is completely optional. The notes and questions are not intended as a comprehensive explanation of the various procedural rules that are played out in the book – those will necessarily wait until the Civil Procedure course. The idea is to get you to stop and think about what you’re reading from time to time.
You probably know that this book has been made into a movie, which you may have seen. While I think the movie does a good job in capturing some of the main themes of the case, I strongly advise you not to use the film as a substitute for, or a “Cliff Notes” version of, the book. It should come as no surprise that the movie changes or entirely omits many, many vital details.
In addition to this written Reader’s Guide, I will post one or two brief illustrated lectures that provide a very basic overview of the civil litigation system. Listening to these lectures is optional – you may find the overview helpful to following along the procedural steps described in the book.
It is with mixed feelings that I impose on your time in your last summer before law school. After giving it much thought, I felt that reading this book will help give you a running start to better understand Civil Procedure and indeed your first semester experience as a whole.
Notes and Questions Big Picture Did the legal system – more specifically, the civil justice system – fail to redress the harm to the residents of Woburn? Does the legal system offer a workable process for redress?
Could Schlictmann have obtained a better outcome (better for his clients, for society, or from any perspective you think appropriate) by conducting the case differently? If you think he made mistakes, try to identify them specifically. What, if anything, did he do well in handling the case?
Consider the role of money in this case and the legal system. (See, e.g., pp. 280, 451-54, and the chapter on “The Negotiation”). Was there a way for Schlictmann to win redress for his clients without an award of money? The EPA’s settlement of a civil enforcement suit against Beatrice and Grace with its $69 million cleanup plan would not have provided any monetary compensation for the Woburn families. Would that have been a just outcome without any separate civil suit seeking compensation for the families?
Has reading A Civil Action changed your view of the law or the legal profession at all? If so, how?
Chapter 1 (pp. 9-50): Woburn: Summer 1966
Question: How would you feel about having Anne Anderson as a client?
Chapter 2 (pp. 51-83): The Lawyer
Notes: The value in 2011 dollars of the settlements and verdicts from the early 1980s would be a little more than double. The $4.7 million Carney verdict in 1983 would be about $10.84 million in 2012 dollars.1 p. 65:“Schlictmann filed [the Piper Arrow suit] ... three months after the accident.” A theme in this chapter is that the “value” of a case is often in significant part the amount of investigative and preparatory work the lawyer puts into it. Note how much investigative work Schlictmann did prior to filing the Piper Arrow lawsuit.
p. 75: “statute of limitations” All civil cases must be filed within a certain period of time after the transaction or occurrence giving rise to the legal claim. These deadlines are set out in “statutes of limitations.” For a case like this, the date on which the “statute of limitations” begins to run can be a complex question. The author glosses over that when he asserts that the statute of limitations began running when the wells closed in May 1979.
p. 80: Schlictmann “would have liked to speak to one of those men...” Rules of professional conduct prohibit a lawyer from speaking to adverse parties (including many of their employees) without their lawyer present.
Question: Do you agree that Schlictmann’s decision to turn down the Eaton settlement offer was “a foolhardy gamble”?
Chapter 3 (pp. 85-119): Rule 11
Notes: This chapter provides an excellent illustration of the contrast between a small firm trial practice (here, personal injury) and a large firm litigation practice. I would say that Cheeseman is more typical of a large-firm litigator than Facher, whose extensive trial experience is unusual in large firms.
Rule 11 states that a lawyer should not file papers in court that are not “well-grounded in fact.” Cheeseman’s “Rule 11” motion argued in essence that the plaintiff’s lawsuit lacked factual support and that an adequate pre-suit investigation would have revealed that. But between the EPA report and other investigative work not mentioned in the book, it is clear in retrospect that Schlictmann and Roismann had done a fairly thorough pre-suit investigation and had a good factual basis for their claims. Judge Skinner’s decision to cross-examine Schlictmann was probably ill-advised and wrong, for many of the reasons argued by Schlictmann at the hearing. The adequacy of the pre-suit investigation and factual support for the suit could have been shown without the unusual step of questioning the lawyer in open court. Judge Skinner seems to have realized this as the hearing progressed.
p. 103:“Gamache was shocked.” Keeping your clients reasonably informed about the litigation to which they’re a party is an obligation of professional ethics. The fact that one of Schlictmann’s clients was so out of the loop that he doesn’t even know whom he’s suing is bad practice and easily avoided.
pp. 111-18: Although the specifics of the hearing were unusual, several aspects of this hearing are quite typical of trial court proceedings. In contrast with the strict formality of appeals court hearings, the freewheeling nature of this hearing is not so unusual for trial courts. Nor is it unheard of for a lawyer to get his way by sheer persistence, as Schlictmann did.
Chapter 4 (pp. 123-46): Orphans and Dogs
Notes: The discussion of the Carney case repeats many themes from Chapter 2, particularly (1) the payoff from significant investment of time and money in a plaintiff’s case and (2) the risk of turning down a significant settlement offer.
pp. 135-43: A summary judgment motion is a major step in pre-trial procedure. Most pre-trial dismissals of cases occur at this stage. It’s unusual for a summary judgment motion to be made and decided prior to discovery, as this one was (see Chapter 5: Discovery). On the other hand, the case had been pending for more than a year. In current federal court practice, the judges try to complete the discovery process in less than a year from the date the case begins. In the 1980s, much federal litigation went at a slower pace.
p. 139: “Schlictmann meanwhile got Cheeseman to agree to yet another thirty-day extension.” Agreeing to extensions requested by your opponent is a commonplace “professional courtesy.” The federal procedural rules state a general policy that lawsuits should be decided “on their merits” rather than on deadline pressures or procedural technicalities. Had Cheeseman refused the extension, Schlictmann could have requested one from the judge, who would probably have granted it – and rebuked Cheeseman for refusing to agree to an extension without a good reason for doing so.
“Causation” remains the key legal issue in the case. The fact that the judge didn’t dismiss the case on summary judgment does not make that issue go away.
Question: What do you think Schlictmann will have to do to prove that Grace and Beatrice caused the plaintiff’s injuries?
Chapter 5 (pp. 149-93): Discovery
Notes: The “discovery” process includes a number of procedures for obtaining information from the other side in the lawsuit. Depositions (out-of-court witness examinations under oath) are one of the most important, though not the only mode of discovery. Typically, it is through the discovery process that lawyers do the most work in pulling together the evidence to make their case.
The kind of “stonewalling” encountered by Schlictmann -- witnesses withholding evidence through false denials and claimed memory lapses – is regrettably more common than one would hope.
pp. 156, 174: “‘If you know...’” ... “‘He’s now asking for your direct observation.’” Though perhaps not as egregious as Schlictmann’s deposition behavior in the next chapter, Cheeseman’s occasional attempts to coach the witness under the guise of making objections were improper.
“Plaintiffs’ lawyers feed on death. They see a dead person as an opportunity to make a bundle.” – Donald Federico, of Hale & Dorr (p. 163). What do you think? What do defense lawyers feed on?
Chapter 6 (pp. 197-232): The Woodshed
Notes: Expert witnesses are retained by lawyers to explain matters that are outside the common sense and experience of jurors. Often, scientific and technical matters can only be proven with an expert witness. Typically, expert witnesses must undertake time-consuming analytical work to support their testimony, and they are invariably paid at costly professional consulting rates.
pp. 216-18: Federal judges frequently delegate discovery disputes to so-called “magistrates” (now, “magistrate judges”), who are essentially “assistant judges” appointed for limited terms.
Schlictmann’s experience with the magistrate illustrates why not to get on a judge’s or magistrate’s bad side.
Schlictmann got off lightly (with a stern warning) for his conduct at the expert depositions. Still, many judges are reluctant to punish attorneys for abusive conduct during discovery proceedings. The most common form of punishment is an order to pay a monetary penalty to the other side (usually a few hundred, or perhaps a thousand dollars or two) to compensate for several hours of wasted attorney time.
Question: Schlictmann could not have proven his case without expert witnesses. Nevertheless, do you think he was extravagant in the number of experts he hired and the work he had them do on the case?
Chapter 7 (pp. 235-63): Billion Dollar Charlie
Notes: Depositions of expert witnesses are particularly expensive. In addition to the attorney time and court reporter fees, the party taking the deposition has to pay the expert’s hourly consulting rate. The large number of expert depositions in this case drove up the trial preparation costs for both sides.
pp. 257-58:“Were any of those people suffering from cardiac arrhythmia?” A recurring problem for litigators when questioning witnesses is the evasive answer that seems, but really is not, responsive. Note how Schlictmann, seeing that Dr. Mudge didn’t precisely answer the question, kept pressing until he got an answer that was helpful to his case.
Questions: Was it a good idea to hire Professor Nesson?
Nesson saw the case as an opportunity to “ring alarm bells in the corporate boardrooms of America.” What do you think?
Consider “the case of the Blue Bus” (pp. 235-36). Do you agree that it would be wrong to find for the plaintiff based purely on the probabilities?
Chapter 8 (pp. 267-290): Facher’s Plea
Notes: One aspect of the complex art of settlement negotiations is making a demand or offer that leaves room to negotiate but is not so high or so low that it kills the discussion at the outset.
p. 282: Do you agree with Facher’s point about a woman with small children sitting on the jury, or do you find that sexist? It is now unconstitutional to exclude a juror on the basis of sex.
p. 284: “It took six days and the voir dire of seventy-nine citizens to empanel six jurors and six alternates.” The process of questioning prospective jurors is called “voir dire.” Federal civil cases are tried before six-member juries. “Alternate” jurors sit through the trial and are available to substitute for regular jurors who have dropped out.
pp. 285-88: The trial judge has very broad discretion to decide how the trial will be structured. (In the movie, which omits Charles Nesson from the story, Schlictmann is portrayed as extremely upset by the judge’s trial plan.)
Questions: How do you think the trial should have been structured?
Can and should Schlictmann have acted differently to settle the case, either with Beatrice separately or with both Beatrice and Grace?
Chapter 9 (pp. 293-376): The Trial
Notes: As depicted in the book, Judge Skinner did not do a good job of keeping control of the trial. Excessive objections designed to break the “momentum” of a party’s case should not be allowed, and there are many ways a judge can control that. In recent years, many trial judges increasingly exercise tight control over the length of the trial and would not allow a single expert witness’s testimony to drag on for days.
pp. 294, 305: Parties to a case have a right to attend the trial. Even though they may also be witnesses, they are exempt from a judge’s order excluding witnesses from the courtroom. Many lawyers insist that their clients attend trial regularly so that the jury may see them; Schlictmann’s opposite decision is tactically debatable. (Riley, as the former owner of the tannery, and merely a Beatrice employee, was not a party to the case.)
Trials – especially longer ones – are something of a war, in which the ultimately winning side doesn’t win every battle. The ups and downs in the trial here are not atypical.
The depiction of the trial illustrates the challenges of working with expert testimony. Ideally, virtually all of this work preparing direct and cross examinations of experts should happen before trial -- much of it during the discovery phase. But that’s difficult to accomplish in practice, largely because the great expense of expert witnesses creates an incentive to postpone it until close to the trial date.
The “special verdict form” – a set of questions posed to the jury – is a common procedure in complex civil trials.
Chapter 10 (pp. 379-401): The Vigil
Notes: Inside looks at jury deliberations are fairly rare, and this one provides a number of insights into the jury trial process. You can also infer some important things about trial advocacy from the jurors’ struggles to reach a verdict.
pp. 382-84: There’s a lot of lawyer folk-wisdom about interpreting jurors’ body language and non-verbal cues to guess their thinking about the case -- but it may well be completely wrong. Jean Coulsey’s seemingly cold and evasive reaction to Schlictmann actually masked her positive feelings about him and the plaintiffs’ case.
p. 385: “Coulsey ... had difficulty articulating her thoughts and could not readily summon facts the way Fox could.” An extremely important function of closing argument is to give supportive jurors arguments they can make to other jurors in the deliberations.
p. 388: While Judge Skinner may not have been highly sympathetic to Schlictmann’s case, at this stage, his priority is that the jury reach a verdict one way or the other. A hung jury means a mistrial and a “do-over” of the lengthy trial, something he would desperately want to avoid. The defendants would be happy with a mistrial, because they know it would be difficult for the plaintiffs to gear up for a do-over.
p. 391-92:“The fourth question stumped them for a while.” The juror’s answers to the four special verdict questions would be critical to the plaintiff’s case, and their muddled answer hurt the plaintiffs. Another critical function of closing argument is to walk the jurors through whatever questions or instructions are given them, and make it as clear as possible how they should answer the questions to find in your favor. Schlictmann seems not to have done a good job on that.
Notes: The glaring, though complex themes in this chapter relating to the dynamics of settlement are something we’ll discuss during the semester. Among other things, Schlictmann’s tendency not to involve his clients in the process is highly problematic under the rules of professional ethics.
The motion for a new trial is a procedure that allows the losing party to appeal a jury’s verdict to the trial judge.
Question: Schlictmann repeatedly claimed that he would not let his own financial pressures affect his judgment on settling the case. Did he succeed in that? Did the case settle on terms less favorable than it should have?
Chapter 12 (pp. 451-492): Blindman’s Bluff
Notes: pp. 487-88: “It was not their job, stated the court [of appeals], to second-guess a trial judge who was intimately familiar with the ‘checkered history and inner workings of this convoluted case.’” This chapter illustrates how difficult it is to correct mistaken trial court decisions on appeal. Appellate courts are highly deferential to trial judges on “factual findings” and procedural matters, and are often somewhat reluctant to force time-consuming “do-overs.”