First Year Law Students, A Civil Action and Procedural Justice

200px-CivilactionbookI am very excited about our incoming 1L class to Carolina Law.  As the chair of the admissions committee this past year, I had the opportunity to speak with many of our admitted students, and they are a bright, dynamic, diverse bunch.  Our Dean and others in the administration thought these soon-to-be law students would enjoy reading Jonathan Harr’s legal thriller, A Civil Action, and talking about it together online in our version of the summer book club.

The following are my two posts on the book, which draw from my experiences teaching in the UNC Juvenile Justice Clinic and my scholarship on procedural justice theory. Dean Jack Boger’s posts are here and here, and in future weeks, other UNC law faculty are going to be sharing their thoughts and insights.  Meanwhile, our incoming class is already engaging with faculty in the comments section.    If you haven’t read the book (the movie doesn’t count!), I recommend it — it’s a fast read that raises compelling issues.

1) It’s my pleasure to join the conversation that Dean Boger recently started exploring Jonathan Harr’s “A Civil Action.” Although I read it long ago, I welcomed the opportunity to read it again, as my perspective on the story has shifted after many years of practice. I graduated from law school 21 years ago, and, aside from a year clerking for a judge on the Massachusetts Appeals Court, I’ve spent the intervening years practicing criminal defense — a decade representing indigent adult defendants as a public defender in the state and federal courts of Massachusetts and the past nine years representing kids in the juvenile delinquency courts of North Carolina as a faculty supervisor for the UNC Juvenile Justice Clinic.

My third-year law students represent children who are 15 years old or younger who are charged with criminal offenses that are typically the result of minor misconduct at school or in their neighborhoods. The students travel to the homes of their young clients to interview them about their lives and to gather information in order to investigate the pending charges. They speak with parents and guardians, visit middle and high schools to talk with teachers and review school records, and do legal research in order to file and argue motions and advise their clients as to how best to resolve the case.

We emphasize holistic representation in the clinic — not merely defending against the criminal charges that our clients must confront but addressing the broader forces at work that are acting as stressors in their lives. We don’t always win, but at the very least our clients experience what it’s like to have someone working hard on their behalf — we don’t make decisions based upon what we believe is in our client’s “best interest,” but pursue what the young person conveys as their own or “expressed” interest.

I’ve thought about the work of my students as I’ve reread “A Civil Action,” how the lessons they are learning are not that different or removed from those with which Jan Schlichtmann and his colleagues struggled. The themes that most resonate with me are interrelated:

  • What is the purpose of the litigation process? Is it, as Professor Nesson asserted, “a morality play watched by a public audience?” Is it to seek the “truth?” If so, is this possible within the confines of jury trials, or does the adversary process only obscure reality? In other words, does the truth inevitably remain — regardless of the verdict or the details of the settlement — “at the bottom of a bottomless pit,” as Attorney Facher claimed? In the “enclosed, ritualistic world of the courtroom,” as Jonathan Harr wrote, is “reality often a mere shadowland?” If so, what if anything can/should be done structurally to change the system?
  • What is the lawyer’s duty to her clients? Schlichtmann told the Woburn plaintiffs, “I’m representing you, not controlling you.” Yet, is this an accurate estimation of his role vis-a-vis the families? Did he involve them enough in the decision-making process or was he patronizing and self-serving, as one of his clients, Anne Anderson, ultimately felt? Is this relevant or is the bottom line — the amount of money the plaintiffs are awarded — the only truly important factor in litigation of this nature? If you had been in Schlichtmann’s shoes, how might you have handled the attorney-client relationship? What do you feel he did well? What could he have done better?
  • When deciding upon the area of law to practice, need it be a choice between riches and fame OR doing good, as Schlichtmann reflected during settlement negotiations? As a member of the legal profession, is it possible to achieve both fame and fortune as well as to benefit society? What does it mean to serve the “public interest?” Is this a duty shared by every member of the bar? Can this be done via pro bono service? If so, what type interests you most?

2. In my last post, I highlighted several themes that resonated with me while reading “A Civil Action.” Now I will continue the conversation with a discussion of the concept of procedural justice, as it touches upon the questions that I posed regarding the purpose of the litigation process and the lawyer’s duty to her clients.

One of the most striking aspects of the book for me was the complete absence of the plaintiffs from the bulk of the narrative. After Jonathan Harr chronicles the illnesses and subsequent deaths of the Woburn children in the first few chapters, the plaintiffs aren’t mentioned again in any meaningful way for hundreds of pages. It is not until p. 316 that we hear of them again, when it is noted almost in passing that the lawyers provide the families with daily copies of the trial transcripts, which few of them read consistently. In contrast to the total immersion in the litigation by Schlichtmann and his associates, we learn that “as the weeks dragged on and the daily transcripts mounted into a towering pile, [the plaintiffs’] lives settled back into the normal daily routine of work and school. The trial — their trial — became a distant echo.”

The next mention of the families is not until p. 441 when they are beckoned to a meeting with Schlichtmann to discuss settlement and their options. Although this is a process with which he has been intensely engaged for weeks, having traveled to and from New York to meet with W.R. Grace execs, it is the first time that he has updated his clients on the negotiations — and it is the first time in over a year that any of them have visited their lawyer’s office. During the meeting, they discuss Grace’s offer, and several family members express that their top priority is not the amount of the payout but to have Grace acknowledge and take responsibility for causing the illness and death of their loved ones. When asked what would happen if Schlichtmann advises them to accept an offer that they refuse, he replies (somewhat disingenuously in my view), “I’m representing you, not controlling you.”

Soon thereafter, Judge Skinner accepts the settlement agreement, which mandates that the judge declare a new trial for Grace, thereby vacating the guilty verdict. Reverend Bruce Young, who had supported Anne Anderson’s early suspicions that the water was causing her son Jimmy’s illness, was particularly upset by the case’s resolution. He recalled that Anne had once said that it wasn’t the money that was important to her, but “that what she wanted was for J. Peter Grace to come to her front door and apologize.” The reverend himself concurred, for he had “invested a lot of himself in this matter, and to him taking Grace’s money without a full disclosure by the company, or any expressions of atonement, cheapened everything.” Anne, in fact, is so troubled by the way the case is resolved that she and the Zona family hire an accountant and a lawyer to challenge Schlichtmann’s claims for expenses.

The notion of procedural justice is that people are more likely to comply with law and policy when they believe that the procedures utilized by decision-makers are fair and unbiased. Its proponents contend that procedural fairness plays a key role in people’s willingness to accept a wide range of types of decisions, from U.S. Supreme Court rulings to corporate drug-testing policies. Empirical research in this area has focused on exploring why people are either satisfied or dissatisfied with a particular dispute outcome and whether there is a relationship between the type of process used and one’s perceptions of systemic fairness.

The finding that people care enormously about the process and greatly value the opportunity to tell their own story, regardless of the outcome, has been replicated across a wide range of methodologies, cultures, and settings. For instance, in recent years it has been found empirically that when doctors admit to medical error and compensate their patients quickly and fairly when their error causes injury, the number of new medical malpractice claims decreases, resulting in significant cost savings to the profession. Similarly, it has been reported that at hospitals that have acknowledged a preventable error and apologized to the patient, the number of malpractice filings have dropped dramatically, saving hospitals significant legal costs.

In reflecting on the Woburn case, I have tried to imagine how an understanding and appreciation of procedural justice theory may have altered the way in which the case was handled and the ultimate degree of satisfaction felt by the victims.

  • Would the plaintiff families have preferred an apology and acceptance of responsibility by Grace over a monetary settlement with no admission by Grace?
  • Would Anne Anderson and the others have wanted an opportunity to tell their stories — to speak at a public forum about the suffering of their loved ones had experienced instead of hundreds of thousands of dollars?
  • Would Grace have been willing to consider such a resolution, knowing that there were others with potential claims against them?
  • Although such an agreement would have certainly saved the parties time and money as well as (for the families) heartache and uncertainty, what of the view that only large monetary settlements succeed in “teaching corporate America a lesson?”

Thoughts about the questions posed above?  The book in general?  The Woburn case itself?  Civil litigation and procedural justice?  Please share in the comments.  

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About Tamar Birckhead

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