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Jonathan Hafetz

Hi, I'm Jonathan Heifetz, and welcome to Law and Film, a podcast that explores the rich connections between law and film. Law is critical to many films. Film, in turn, tells us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What legal issues does the film explore? What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

And what does the film teach us about the law, and about the larger social and cultural context in which it operates? Our film today is a civil Action, the 1998 movie based on Jonathan Haas critically acclaimed book of the same name. Written and directed by Steve Zaillian, the film stars John Travolta and features supporting performances by Robert Duvall, who was nominated for an Oscar.

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Jonathan Hafetz

William H. Macy. James Gandolfini, John Lithgow, Kathleen Quinlan, and Tony Shalhoub. The film tells the true story of a court battle over the environmental pollution in Woburn, Massachusetts, to the 1970s and 1980s, where chemicals like trichloroethylene or TCE, an industrial solvent used in several industrial operations contaminated the local water supply, leading to numerous fatal cases of leukemia and a cancer cluster.

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Jonathan Hafetz

The victims included a number of small children, as well as many other health problems for Woburn residents. Boston personal injury lawyer John Simon and his small firm brought suit on behalf of a group of victims families against two large corporations. Beatrice Foods and R Grace. There was a third company that previously settled. The families demanded compensation and justice for the horrific tragedy.

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Jonathan Hafetz

But their quest for compensation and justice ran into dogged resistance from the large and powerful law firms on the other side, especially prominent WilmerHale. Then Helen Dorr, partner Jerome, or Jerry Thatcher, played by Robert Duvall. The economic toll of the litigation eventually drove selectmen and his firm to bankruptcy. The film offers a dark view of the U.S. legal system and why it often seems ill equipped to uncover the truth and provide accountability and justice for victims.

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Jonathan Hafetz

Joining us for a discussion of the civil action is Jen Carinus. Jen is a graduate of Wellesley College and a graduate in 2000 of Boston University School of Law. She was in private practice until 2007. In Boston, and then moved to Tampa, Florida, where she worked from 2007 to 2021 for the U.S. Attorney's Office. There for much of the time, Jen was a trial attorney in the U.S. Attorney's Office, defending various federal agencies and litigating complex tort cases and other civil litigation, and engaged in numerous federal trials.

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Jonathan Hafetz

She also worked in the Appellate Division, where she argued civil and criminal appeals before the 11th Circuit Court of Appeals. She also served as a senior litigation counsel responsible for training assistant U.S. attorneys while at the U.S. Attorney's Office. Jen co-founded a mentoring program with another assistant U.S. attorney, Lindsay Griffin, at a title one elementary school, and she was awarded the U.S. Attorney General's Volunteer Award for Community Service and the Hillsborough County Public School Partners in Education Award, both in 2017.

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Jonathan Hafetz

After leaving the U.S. Attorney's Office in 2021, Jen returned to private practice and now serves as of counsel at Greenberg Traurig in its Tampa office, where she is part of the Labor and Employment Group and continues to practice civil litigation. Jen leads the Tampa office pro-bono program where she focuses on immigration cases. She serves on the boards of Gulf Coast Legal Services and the Tampa museum of Art.

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Jonathan Hafetz

One other important detail from Jen's bio is that from 2000 to 2001, she served as a clerk for US Court of Appeals Judge Sandra L Lynch in the First Circuit, where I was fortunate to also serve that year as a clerk for Judge Lynch. So Jen and I were co clerks for the judge during that year. We got to know each other very well and work for a truly fantastic judge in the First Circuit deciding important cases.

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Jonathan Hafetz

So it's really great to reconnect with Jen after such a long time. And what better way to do that than to talk about this seminal movie about American law, a civil action? Welcome, Jen.

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Jennifer Corinis

Thank you so much. It's so great to talk to you again after all this time. You know, after just a few minutes, it feels like we're back in the library and judges just chambers having lunch and talking about appeals. And I agree with your assessment that Judge Lynch was and is a fantastic judge. And despite the fun I had of the attorney's office, it's still is the best legal job I've ever had.

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Jonathan Hafetz

Truly an amazing experience since I worked in the district court as well and had my former Judge Rakoff on, I would make clear to say that they were equally the two of the best experienced.

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Jennifer Corinis

And that's very fair. I totally understand that.

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Jonathan Hafetz

Partiality is key. So,

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Jennifer Corinis

Yes it is.

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Jonathan Hafetz

The civil action, the movie, the 1990 movie, which was based on the 1995 book. It's a fantastic book, and I think it was a very good movie. the first thing we were assigned in law school was the book A Civil Action, to kind of give you, maybe a more nuanced view of the legal profession. But let's start here.

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Jonathan Hafetz

Can you talk a little bit about the larger context for the lawsuit that's at the center of a civil action?

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Jennifer Corinis

What I really take away from the book and the movie is the uncomfortable question of whether our legal system is the right place to vindicate these kinds of cases. Is this the right forum in which to remedy the loss of a child due to allegedly somebodys negligence of dumping these chemicals? And it also is a pretty unpleasant look to, in some cases of legal profession lawyers themselves.

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Jennifer Corinis

So to me, the larger context is very probing and sometimes unpleasant. Look at the personal injury legal system, the court system, the jury system, all of that. And I really don't think that either. That's why this lawyer, Jamshed Lichtman or Jerome Thatcher or William Cheeseman, any of them really is a villain or a hero, or where is the white hat or the black hat and a movie?

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Jennifer Corinis

We want a hero in the end. And the message I take away from this movie is that there really isn't one. And nevertheless, there is still these children in these families that are devastated and they feel deeply unsatisfied with the outcome.

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Jonathan Hafetz

And the film. Interestingly, in terms of character development, I think the main focus is on the protagonist, Jack Klugman, the lawyer who takes up the case of the families who were, you know, the victims of the pollution in Woburn. And, you know, he starts out as sort of a hard edged, successful personal injury lawyer, very focused on the bottom line, sort of.

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Jonathan Hafetz

His view is that all the legal system can provide is money, and his goal is to get as much money for his clients and well as well, since he works on a contingency basis for himself and his partners. And part of it, you know, it's interesting the film is to watch him transform, become obsessed by this case. That's where maybe he loses his way when he starts to think the legal system can deliver more than dollars and cents.

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Jonathan Hafetz

but at the beginning, the film opens with what seems like sort of straightforward medical malpractice suit against Mass General Hospital, a horrific outcome. The victim is in a wheelchair, but it doesn't seem particularly complicated from a legal perspective. That's the sense the movie gives us. And so what we see is we see Stickman taking his wheelchair bound client from the hospital to court, where trial is set to begin, and we hear a voiceover of Stickman describing how cases are valued or not valued by the legal system.

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Jonathan Hafetz

And then it's almost like a race against time for the defense to make a good enough offer before Stickman opens. But let me play this clip about how the legal system assesses value.

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A Civil Action Dialogue

It's like this a dead plant is rarely worth as much as a little severely maimed plank of your own agonizing death, as opposed to the trial court that I consider the dead of darkness trials is generally worthless. Someone who has never had that moment less than a dead man, or someone who's married that has to pay for such.

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A Civil Action Dialogue

The perfect victim is a white male possession, 40 years old, at the height of his earning power, struck down in the most imperfect row in the calculus of personal injury law and the trial. Those words, the least of all.

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Jonathan Hafetz

What's your impression here in terms of statements? You have a legal system and also who makes a good, better or worse?

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Jennifer Corinis

I mean, it is kind of an ugly it's kind of an ugly and cynical way at the outset to start off, and it's sort of jarring and that's on purpose because he really isn't wrong. And I defended the hospitals and community health centers in some truly horrific cases. And in those cases, we had no choice. And that was correct.

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Jennifer Corinis

The only way to resolve those cases is with money. And in order to do that, you have to assess what is the loss. So he puts it in somewhat crude terms, but it is true. What is the loss? And if you have someone who is in the prime of his or her life, married with a good job, that is going to be a victim whose life is valued more.

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Jennifer Corinis

It's just a fact. Because the loss of income, the loss of consortium and things like that. And so there were times that I remember lawyers getting somewhat squeamish about, you know, my God, you're trying to put a dollar amount on the life of a child. I said, well, you did that when you father's lawsuit, that's all we can do.

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Jennifer Corinis

We have to do that. So let's do it somewhat dispassionately. And that's really the way you serve your client best. It's not that there isn't that part of you that thinks this is really a tragedy. It's awful. There's no amount of money, but you have a job to do. And the job is either recover compensation for your client, like when is, or to make sure that if your client did something wrong, that they compensated the victim fairly, but that they're not taken advantage of.

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Jennifer Corinis

So it is fair to say, as he says, the perfect victim is what I just described, someone who's in the prime of his or her life with children and earning, whereas a child, unfortunately, they don't have that earning potential. That's demonstrated and they have the loss consortium with their family, but the compensation is not going to be as much for that as it would be for someone like the victim that schlecht been brings into the courtroom.

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Jennifer Corinis

And I mean, it's a movie, so it's somewhat cartoonish. Anyways, dabbing in his mouth and the jurors are already openly weeping and, you know, it's a bit much. But the one thing I take issue with is, as a defense lawyer is when the lawyer on the other side is scribbling numbers on the post-it note and holding it up, that's really trying to keep segment from doing its opening statement, because then he knows their value goes up and then he, you know, it's like bean rejects the 1.5 and then he writes 2 million, please.

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Jennifer Corinis

And it's like when he gives this nod and then it's over. And I can tell you that if I had said, please, the lawyer, like Shechtman would have correctly assumed that I had more money. You did not say, please. You say, God, you're killing me the most I'm ever going to be able to get you. 2 million.

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Jennifer Corinis

Don't make me go back. That is absolutely it. You don't say 2 million, please.

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Jonathan Hafetz

It's last and final offer, not last and final offer, please. Right.

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Jennifer Corinis

Exactly. So again, it is a cynical view, and it's put somewhat crudely by schlecht means character, but it's not wrong.

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Jonathan Hafetz

Is there a difference? You know, as I'm thinking about this in the film, between something that's a more straight med case involving negligence and then something where we'll get to when we talk about the pollution in Woburn, where the, the victims, the primary victims are children, the ones who died of leukemia, for example, the daughter of an airplane of an Anderson.

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Jonathan Hafetz

Because there's another element of damages, right? There's compensatory damages. I think that's what the segment is talking about in terms of children being the least desirable victims from a compensatory damages perspective. But there's also punitive damages, right. So that maybe is another consideration that enters into the equation.

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Jennifer Corinis

And that's a huge consideration here, obviously, because and that's why, as we'll talk about later, Shakman is focusing on their yearly earnings because punitive damages are intended to be relative to the bad actor. And they're supposed to hurt. So absolutely, punitive damages are a way to be sort of that private attorney general and punish a wrongdoer by imposing creative damages on them.

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Jennifer Corinis

And I think that that's what some people misunderstand. When you see a verdict in a case where, you know, it seems like, okay, it's a sad case, something terrible happened, but the plaintiff recovers, you know, $50 million and it seems wildly disproportionate to what was needed to compensate the victim. That will often be because they're punitive damages. And as the name suggests, it's intended to punish.

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Jennifer Corinis

So yeah, that is definitely an element here that's not really talked about in the case.

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Jonathan Hafetz

Going back to Schlick, man, after this scene, this opening scene where he finally goes and negotiates this lucrative settlement from Mass General, it cuts to. But in his success, he's on the cover of fortune magazine. Yeah. Yes. The magazine. Right as the most eligible bachelor. He's job a fancy car. He's got a very big closet full of very expensive suits.

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Jonathan Hafetz

He's sort of at the top of his game. Right. And there's no stopping him. And then, you know, he gets this call from the group of plaintiffs in Waltham, Massachusetts that he's been promising to go see regarding the industrial pollution there. You know, it's a very sad case. Everyone sees that, but it's described as an orphan, a case that no one seems to want to take because it seems too challenging for various reasons to get into, despite the harm, the magnitude of the tort.

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Jonathan Hafetz

And so, Schlichting says, all right, I'll go. He drives out, sees the family, hears from the family. And certainly I think he's upset, but he's not moved yet. And then on his way back, as the movie describes, he gets his second speeding ticket. He got one there, and he stopped near an area where some of the contamination was set to occur.

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Jonathan Hafetz

And he observes, what he thinks is evidence of at least one of the companies that they have been contaminating the water supply. So basically, Sick Man learns that there's actual evidence that the companies were involved, and presumably he thinks they're good because they've got both Beatrice Foods and, Gray's empty pockets. So he thinks this is a good case from a financial perspective.

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Jonathan Hafetz

accountant played by William H. Macy says, don't take this case from a financial standpoint. It's not a sound investment. Why is the calculus different here? Or in a case like this involving environmental pollution from a medical case or other garden variety tort cases that provides the bulk of the firm's docket.

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Jennifer Corinis

In a tort case? You know, those are a lot of the ones that I handled. If the case goes to trial, I think it's accessible for a jury to think this person went in for an operation. It came out of the operation with an injury. And then you have an expert explaining that the doctor made a mistake, and that's why this person is injured.

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Jennifer Corinis

People can understand that. Or, you know, I saw a car run a red light. It hit this person and it caused them injury. Those are obviously simplified versions, but I think that's accessible to a jury. They can understand that you're going to have experts and they're going to have the battle of the experts, but it's going to be a lot more easily comprehensible by a jury.

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Jennifer Corinis

Whereas these environmental cases are usually extremely long, they involve, as is the case here, extremely complicated expert testimony involving, you know, water tables and geology and things that are not in the everyday experience of a juror. And again, going back to my initial point, you know that this really isn't the best form. Do this. You've got this artificial layer of the jury can't ask the experts questions.

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Jennifer Corinis

They can't, as is the case today. Go on Google and try to figure it out for themselves. They just have to listen to, in this case, literally months of expert testimony about this very esoteric science that is not something they have any experience with. So the calculus is totally different. On the other hand, it is children who are very compelling victims.

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Jennifer Corinis

And so from a punitive standpoint, it is a very, very compelling case. But you're right that Lichtman initially, he has those two sides of himself that eventually become blurred. I think where he has the calculus of, is this something that I can get paid to do and prove and get what the client wants versus this is something really sad that those two eventually become blurred.

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Jennifer Corinis

And in the beginning, he also does a lot of the voiceover of trials are a corruption of the process, and only a full of something to prove ends up ensnared in it. And by something to prove, I mean about themselves. And it's funny that he says that at the outset, and that is a very apt description of what happens to him eventually.

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Jennifer Corinis

He is he is just no holds barred, going to go to trial. The whole corruption of the process, if you don't settle, it goes by the wayside because not only is it these children, but he sees these corporations as callous and he wants to punish them.

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Jonathan Hafetz

I think you're now in that. I mean, he goes from the ultimate rational actor calculating everything in terms of what it's going to deliver monetarily, which way of serving his clients to being kind of taken by the story and the larger struggle and becomes, I'm kind of a man with the mission and loses sight of these things. Yeah.

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Jonathan Hafetz

Just to follow up on your point about the challenges of mass tort cases like environmental harm, environmental pollution, I guess another aspect is they also often involve, as they do here, large corporations, which may have deep pockets, but also because they have deep pockets, they can spend a lot of money on litigation. Right, slick? MIT is a small firm, and he's up against big law in this case.

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Jennifer Corinis

Yes. And that is obviously a huge thumb on the scale. And that comes later on in the film when he goes up to meet with a representative for Grace. And he's talking about how, you know, we can afford to pay a lot more than this. And of course they can if they have the wherewithal to keep going and keep defending this case and just lead him dry.

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Jennifer Corinis

And they also and a big corporation like that also says accurately, we can't just throw money at you as much as you demand, because we're just going to have a line out the door of people filing lawsuits against us. If they learn that you stick around long enough, you're going to get a huge check. So he's got that balance.

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Jennifer Corinis

But yeah, for sure, that hill and door and all these other large law firms, they have those resources. They've got a ton of associates. They can just keep going for years. And at some point, I think Bashir mentions that he's aware that the IRS has a lien on any settlement, so he's not even hiding the fact that he knows what that pressure is for Dan, and he's going to press on it.

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Jonathan Hafetz

It's real tactical warfare that's seen between like, man, after the case kind of starts falling apart and the head of our grace, our justice, who's played by Sydney Pollack, where, you know, after he sort of strings him out with a long lunch at the Harvard Club, where you're not supposed to discuss settlement. I have no idea if that's,

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Jonathan Hafetz

Yeah, it's a great scene. I should add is we talked about my complaint in earlier podcast and Sydney Pollack there is playing the very managing partner of Marty back in that case, Sydney Pollack seems to love playing this very hard edged captain of industry and a master of realpolitik. So it's another great role for him. So going back to the firms and the way it's set up, there's three main lawyers.

00;19;19;09 - 00;19;48;11

Jonathan Hafetz

You've got six men representing the plaintiffs, and then you've got the two lawyers representing the companies. Jerry Thatcher represents Beatrice Foods, he's from WilmerHale, that Helen Dore. And then you've got, William Cheeseman, who's the lawyer representing W.R. Grace and company. But it's really set up, in a way, this clash between Schliemann and Jerry Thatcher, who's a legendary litigator, recently passed away, I believe, from, what's now WilmerHale, who represents Beatrice Foods, one of the two large companies that ensues now.

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Jonathan Hafetz

Beatrice. They're involved because they got stuck. It looks like. I mean, they had bought, Riley Tannery, this family owned business, which was, I think, a pretty decent size, which had dumped the toxins contaminating the drinking water. They bought it in 1978, and then they sold the company back to Riley in 1983, but they maintained legal liability. Can you talk a little bit about the different approaches of Seligman and Thatcher to litigation?

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Jennifer Corinis

So Thatcher's approach is diametrically opposed really to like men's. And he appears to be very sober, very calm, always kind of in the background. He doesn't miss anything. He is always calculating. You know, he's a brilliant guy. And he was known around Boston Legal circles as the Dark Prince, you know, which is not to say he's a bad person.

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Jennifer Corinis

He's just a very, very formidable lawyer. And like you in my class in law school, my first year civil procedure class, our professor and I'm going to give a shout out to professor Ward Farnsworth. It was his first year teaching, and he also used civil action as a teaching tool. And because we were in Boston, he had a research assistant go to the courthouse and get all of the documents from the court case, which, you know, back in the olden days, he went and got the actual paper and brought it.

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Jennifer Corinis

And so we use those in class. It's really interesting. And near the end of class, he even asked, and Jerry Fischer agreed to come to our class to talk to us at the end of the year, and it was absolutely fascinating. And I will say that I don't know the other characters involved very well, but Robert Duvall nails it.

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Jennifer Corinis

Jerry Fischer really was like that. He came into the classroom and had sort of I'm a simple country lawyer. Oh gosh, it's so sad. But, you know, water doesn't it's gravity. And, you know, you're sort of making marks on the blackboard and holding out his hands as though you're all so distressed about this. And again, I'm not saying he's a bad guy at all, but he's just a very formidable lawyer.

00;21;41;03 - 00;22;02;19

Jennifer Corinis

So his approach is he is always calculating. He's always several steps ahead. And inch Lichtman, he kind of has one speed. He's very mercurial. He's got a ton of energy. And so he's running around in circles and you're just standing there, kind of half smile on his face and throws out a couple of chestnuts while Sugarman is running around and getting emotional.

00;22;02;19 - 00;22;20;17

Jennifer Corinis

So they're very, very different. And I'm not disparaging Sherman at all. He was very successful and by all accounts was and is a really good lawyer, despite having somewhat lost his way in this case. Are very good lawyers a really different approach. I've seen both, and both can be effective in their own way. Both are very effective in front of a jury.

00;22;20;18 - 00;22;43;18

Jennifer Corinis

You know, Schlichting is very emotional, probably very relatable. And Vasser is just, like I said, brilliant. And he's in the court during the rule 11 hearing, and he appears to be focusing on taping his litigation back because he carries the same bag all the time. He's always taping the handles and stuff. There's no way he's missing anything. He knows exactly what's going on the whole time.

00;22;43;21 - 00;23;01;05

Jonathan Hafetz

The bags are a great detail. I don't know if he brought us, but it's another contrast between him and Sigmund. He's got this little briefcase, refuses to give it up. Obviously can afford whatever he wants. Actually, Ackman has the fancy car. Dozens of fancy suits. So very different approach and I think worked very well in the more simple straightforward type of cases.

00;23;01;05 - 00;23;21;26

Jonathan Hafetz

Like they start at the beginning with the medical malpractice. But the difference is very legally and actually complex federal litigation. He's a great character in the movie. I didn't have to no. Never met him, but great character. And Robert Duvall's performance is certainly phenomenal. So talk about the other like William Cheeseman. There's a moment in the film early on and you mentioned this when you reference rule 11, Cheeseman is representing a Grayson company.

00;23;21;26 - 00;23;31;16

Jonathan Hafetz

The other defendant wants to file a motion for rule 11 sanctions against Stickman. Thatcher refuses to join. What's rule 11 and what's going on with that scene?

00;23;31;19 - 00;23;52;24

Jennifer Corinis

Well, first of all, and that's accurate. Cheeseman gets the, and by the way, it is Cheeseman and not Cheeseman, as they say in the film. I think that's kind of gratuitous there. Yeah. But anyway, so she's been gets the complaint, looks at it, and calls Bashir, who is methodically tossing a ball against the wall while he talks to him again, that sort of cultivated air of I'm just casual here.

00;23;52;26 - 00;24;18;27

Jennifer Corinis

And she's mortified, as we all love a motion, which is a motion that says lawyers have to have a reasonable basis for anything they put their name on, including filing a lawsuit. You've done a reasonable investigation and you have evidence or you like, we will have evidence. So Cheeseman looks at this and thinks that Shipman is vulnerable. There and that he might be able to kill this thing in the cradle, whereas Bashir knows correctly that it's very unlikely that that's going to work.

00;24;18;27 - 00;24;40;05

Jennifer Corinis

It's not an often used vehicle for this type of thing, and most likely it's going to result in the judge dismissing it without prejudice and telling Shipman try again, which would be what happened if you filed a rule eight motion for a more definite statement. But instead, Cheeseman takes this very heavy instrument of rule 11 to try to get it knocked out in the beginning.

00;24;40;09 - 00;25;00;12

Jennifer Corinis

And Bashir makes the point of if you're going to knock someone down, do it so they can't get back up. And Cheeseman learns very quickly that he didn't do that. And that's why fashion enjoying. And when they go into court, the judge even says, you know, it's a slick man, Mr. Slick. You know what rule 11 is? He says, no, I had to look it up in the judge's, so did I.

00;25;00;14 - 00;25;18;01

Jennifer Corinis

I mean, we all kind of know what it means, but to actually look at it, to see it as a basis of a motion for sanctions and that sanction being tossed, the case is very unusual to have a judge say, on the face of this complaint, I am making a conclusion that this was in bad faith. You didn't have a reasonable basis.

00;25;18;01 - 00;25;37;06

Jennifer Corinis

There is no evidence here. So it was probably not the right move. And fashion recognized that. And I think when Thatcher said, this is not my motion, this is why he likes motion, she's going to lose his credibility with the court, because the court knows it makes it very clear that he knows. Jerry Bashir asks about the Red Sox.

00;25;37;08 - 00;25;54;28

Jennifer Corinis

and I'm sure practitioners have probably had that experience. I have had that experience where your heart kind of stinks. When the judge has that familiarity with one of your opponents, you think, oh, gosh, you know, judges are impartial, but you know, that other lawyer has some credibility and familiarity with the judge. And that's exactly what happened here.

00;25;55;04 - 00;26;16;00

Jennifer Corinis

And in the book, it gets much more into this. And there is also this very arcane charge of Barry Tree, which is when a lawyer basically gins up a case in order to create a business opportunities like a conflict between other people. But it was very complicated and arcane stuff. And Lichtman was really indignant that this was broad.

00;26;16;00 - 00;26;27;06

Jennifer Corinis

And so he's protesting and hopping up this outrage that this has happened. And, it's a very interesting little window into something that might otherwise be boring. But in this case, it's actually pretty interesting.

00;26;27;08 - 00;26;49;29

Jonathan Hafetz

I mean, it's very rarely useful if you're going to file a rule 11 motion is pretty significant. It's quite a step that he takes. And as you said, I think it's interesting and revealing the fashion doesn't join. In a sense, it seriously undercuts the credibility before the judge giving Thatcher's reputation. The strategies attributed to Thatcher in the movie is to try to persuade the judge, Walter Jay Skinner, the district court judge, to bifurcate the trial into two phases.

00;26;49;29 - 00;27;08;14

Jonathan Hafetz

First phase will be liability. Did the companies, were they responsible for contaminating the water and did it cause the damages? And then the second phase would be the damages phase, which is what was the injury? How bad was it? All the things that would go into the actual calculation of the award. So the first phase liability, second phase damages.

00;27;08;19 - 00;27;20;20

Jonathan Hafetz

And under rule 42 for bifurcation, you would only get two damages if you show liability. I'll play a clip here of Thatcher talking about bifurcation. The strategy.

00;27;20;22 - 00;27;49;17

A Civil Action Dialogue

You want to have a drink involving soda. You've been talking with them in prison? No. What? We have been drinking coffee. Now you're being present. Don't be so paranoid. Would want to turn last night. Ballgame and watch somebody scratch. And I was standing there, and I don't know why, but it occurred to me that moat. Unless you kill them at any,

00;27;49;20 - 00;28;18;09

A Civil Action Dialogue

What? When you chemical poisons. Do you like that word? I use it unless you prove that any poisons actually reach the wells. There's no case. And therefore no need to make these families who've already suffered so much. Me. Let us solve the problem. I put it on. Understand? You're on here. You've got what's interesting. I think I have to agree with that.

00;28;18;11 - 00;28;41;25

A Civil Action Dialogue

Yes. If the jury decides favorably on the geological evidence. Yes. And you could bring your families in. The jury came into this courtroom expecting a human job. And instead, for six months, we've been giving them lessons in geology. And we had to do that without violence. That's true. Now we have to see where we are before we can move on.

00;28;41;25 - 00;29;02;18

A Civil Action Dialogue

And before we subjected these families to more trauma than is necessary, because that would just be awful. They they want to testify. Mr.. They need to test solution has been this is the defendant's plan. This is my dispatcher's plan right from the get any time my plan.

00;29;02;20 - 00;29;07;10

Jonathan Hafetz

So how does this strategy affect the case? And what did you make of the film's depiction of it?

00;29;07;13 - 00;29;42;18

Jennifer Corinis

It's a good strategy. It's not an uncommon strategy. They portray it and again, it's fine. It's entertainment. It's a movie portrayed as something sort of shocking that she likely doesn't see coming. It's really not that unusual in a big case like this. Sherman probably had not encountered it and his cases, to be fair. But when you've got a big case with lots of parties and very complicated scientific evidence like this, it actually does make sense for a lot of reasons, judicial economy, to get that out of the way first, because if you can't prove causation, if you can't prove the car went through the light and hit the car, what's the point of talking about

00;29;42;22 - 00;30;18;12

Jennifer Corinis

the tragedy that befell these families and the children who died? And they're suffering? So it's not really an unusual strategy, but it makes a lot of sense. And fascia very early on says these families can never testify, he says, to a colleague. And that's because he knows not only is the judicial economy makes sense to establish liability first, he also knows he wagers, and I think correctly so, that having families get up there and talking about these tragedies and the children who died and the suffering they went through, it can color a juries interpretation of evidence.

00;30;18;14 - 00;30;45;14

Jennifer Corinis

And it may, without them realizing it, make them more likely to find causation, to find liability on behalf of the company, because now you've got this terrible thing has happened, and these companies are accused of causing this tragedy by dumping chemicals. And this awful thing happened. And so the very technical questions about whether the chemicals seeped into the groundwater and whether they actually caused leukemia becomes somewhat academic.

00;30;45;14 - 00;31;16;01

Jennifer Corinis

If you've got all of that out there beforehand so fast, your strategy is not uncommon, and it is a wise one the way that it happens in Judge Skinner's chambers. I hope that's not accurate. I doubt it is accurate that there would be this expert team meeting with the defendant's lawyers in Judge Skinner's chambers before Shechtman gets there, but Lichtman is correct to be upset that Thatcher has, you know, suggested this strategy that Skinner embraces Judge Skinner.

00;31;16;01 - 00;31;25;21

Jennifer Corinis

Excuse me. And then that leads then to these very complicated interrogatories that would be part of the first trial to find out whether or not there's liability.

00;31;25;23 - 00;31;50;05

Jonathan Hafetz

The film portrays it as kind of this very innovative maneuver that's never been done. It is fairly common, especially in these cases, as you say, and you talk about some of the reasons. One of them is economize, the other you describe as prejudice, which is built into the standard itself, i.e. that hearing testimony from victims about harm could be prejudicial to the jury's determination with the plaintiff and not proven causation that the defendants were responsible.

00;31;50;05 - 00;32;00;07

Jonathan Hafetz

The film a little bit makes it look like this kind of sneaky neighbor, but it's common and it is fair game under the Federal Rules of Civil Procedure.

00;32;00;09 - 00;32;24;04

Jennifer Corinis

There is no question that I'm sure fashion outflanked selectmen on many occasions. This is probably not one of them, and it's also kind of gratuitous here in the movie. You know, I really like the movie. I'm not in the movie, but it's funny. The catcher is in Skinner's chambers and again, he's sitting in the background on a couch just drinking his tea absent mindedly and then says, well, you know, I mean, well, put the families through that kind of trauma.

00;32;24;04 - 00;32;38;01

Jennifer Corinis

And this is not why. And it's not his role to worry about that. I mean, that's true too, but that's not why he made this motion. That's how he saw it. Bifurcation is that bifurcation. It is the correct strategy in the circumstance.

00;32;38;04 - 00;32;55;12

Jonathan Hafetz

Is exactly something kind of walks in and just feels like he's sort of crashing a party, almost. You do feel like selectman is kind of culturally a little bit of an outsider. You know, you have the elite lawyers and then the judge coming from more elite circles and from a cultural level, though he's very successful, is in a different class, so to speak.

00;32;55;20 - 00;33;12;14

Jennifer Corinis

And it's interesting that you point that out. I think some of that is a function of this case being removed to federal court. And it started out in state court. Some of the cases that I had when I was at the U.S. Attorney's office, I would encounter very talented, very good lawyers who always operated in the state system.

00;33;12;14 - 00;33;40;23

Jennifer Corinis

And then when you see the United States here in the federal court system, it is a very different atmosphere. Social activity is probably well known and used to operating in state court. And state court can kind of be the Wild West in the federal court, to me, is kind of like church. It's very different. And so I suspect that she's been in foster because they represent big companies, are in federal court very often, as other lawyers from these big firms are, where someone like Sugarman is definitely out of his element.

00;33;40;23 - 00;33;54;27

Jennifer Corinis

Not that he's not smart enough, but it's just not the setting that he is used to. So when he comes barreling in and he's popping up at the hearing and he's yelling at the judge for having this meeting without him, it is not really the type of lawyer that you usually see in court.

00;33;54;29 - 00;34;09;08

Jonathan Hafetz

It's a great point. I mean, to put it in those terms, this is in Fenway or, back. Right? This is his home turf. And I think it would have been different. I don't think Thatcher or she's been would have been successful at this had been in state court. I mean, I think they would have had probably a different array of lawyers.

00;34;09;14 - 00;34;28;01

Jonathan Hafetz

That would have been Yankee Stadium or something for. Yes, he's in his element. It's much less like the emotional appeals doing things on the fly from your gut. More in state court. Federal court is much more tactical warfare. It's much more emotion paper based. And, I think Thatcher and she's been in their element and she's like my very good lawyer is not.

00;34;28;04 - 00;34;46;14

Jennifer Corinis

Just an anecdote on that. And if the lawyer about whom I am speaking hears this, he will know that I tell this story with great fondness for him. He's a friend. But he had we had a case in federal court, and it was a bench trial, and he was making an argument. And the judge's rule is most of the federal judges usually stay behind election.

00;34;46;17 - 00;35;04;24

Jennifer Corinis

So he was so used to being effective and being in front of a jury and gesticulating and walking around that he found it really difficult to stay behind the lectern, and he would put his hand on the lectern and kind of circle it while still sort of touching it technically. And the judge would say, you know, there's no jury here, there's no jury here.

00;35;04;24 - 00;35;15;11

Jennifer Corinis

It's just me. And I could see that it was just painful for him. He wanted to be walking around and gesturing and pounding the lectern, and it just wasn't suitable for federal court.

00;35;15;14 - 00;35;45;12

Jonathan Hafetz

One of the interesting things about Thatcher, I think, is his intuition that the jury would likely dismiss the case against his client, Beatrice Food. And he says the reason that the jury will let the case go forward against the codefendant Grace, but not against Beatrice, is that there was witness testimony that the witnesses actually saw employees of the food packaging company, the subsidiary owned by W.R. Grace, dispose of TCE, the toxin, by dumping barrels and chemicals out back.

00;35;45;17 - 00;36;09;02

Jonathan Hafetz

So you had actual witnesses watching them basically dump the stuff out where it could get into the water. By contrast, the 15 acre property adjacent to and owned by Riley Tannery, which was the company that Beatrice Foods had responsibility for and was heavily contaminated, that area was contaminated. There was no actual eyewitness testimony that saw anyone from Riley dumping the contaminants onto the property.

00;36;09;02 - 00;36;22;27

Jonathan Hafetz

Now, you look at Riley in the movie and you're like, there's no way this guy didn't do it, but he didn't say that. He's a nasty looking guy, right? That there's no evidence. So it's an interesting and I think, astute assessment or there's a good guess. I mean, what did you think of that scene in the movie?

00;36;22;29 - 00;36;44;29

Jennifer Corinis

I thought that was a brilliant point by fashion and, maybe an educated guess, but probably, a very shrewd calculation by him because he knows how juries operate. And so if you have, again, going back to whether this is really the forum to vindicate these kinds of claims, you've got these experts, they all look really smart, really, you know, convincing.

00;36;45;01 - 00;37;05;27

Jennifer Corinis

And they're diametrically opposed. They completely disagree with each other. They're all cross-examined. And it's very difficult for a jury to figure out who is correct. They can't ask questions okay, Google it. So they go either way. But then you add on to that an actual person dumping these chemicals into the ground, then the jury really can latch onto that.

00;37;05;27 - 00;37;27;02

Jennifer Corinis

That is going to be something that's more within the can of the average jury to think this could be bad stuff. And somebody actually was dumping this and they tried to conceal that they were doing that. So that is a very tangible proof that this big company dumped things. And I'm sure it was more complicated than that. But I totally agree with fashion where it's much more theoretical.

00;37;27;09 - 00;37;47;00

Jennifer Corinis

They had the land for a few years and yeah, it's contaminated. We don't know how that happened. We don't know who did it. There's no eyewitness who can talk about how that happened. So he obviously wasn't guaranteed that, which is why he made that offer, just like bend in the hallway. But he was absolutely right. And I think that was from his many years of experience of cases and dealing with juries.

00;37;47;03 - 00;38;07;21

Jonathan Hafetz

On the expert testimony, the liability case, which is the focus of the trial and where things are decided, the liability phase centers a lot of expert testimony, and there's a lot of testimony that is explored more, you know, in the book and obviously in the court documents about whether or not you could prove that the chemicals went from Riley Tannery into the drinking water.

00;38;07;23 - 00;38;28;17

Jonathan Hafetz

and the plaintiffs relied a lot on a hydrological expert who critics have said showed confusion and also undercut his own credibility about whether the toxins could have leaked into the drinking wells. There was an issue about because there was a river between the tannery and the wells, whether you could have traced the chemicals to the wells, as opposed to coming into the drinking water or the wells from somewhere.

00;38;28;19 - 00;38;34;28

Jonathan Hafetz

But what role does scientific evidence play in the case and more generally? And can you talk a little bit about expert testimony?

00;38;35;00 - 00;38;58;16

Jennifer Corinis

So in a lot of the cases that I handled, I had to hire experts. The other side hired experts. And it can be very complicated, certainly not to the level here, but I'll just tell you what my approach was that was effective was to have an expert. And as brilliant as they were and as many articles they may have written about these very technical medical issues, they still had to tell a comprehensible story.

00;38;58;20 - 00;39;20;00

Jennifer Corinis

And I don't mean they dumbed it down, but they still had to make sure that what they were conveying is something that would make sense and resonate with the jury or with the fact finder. And so you had to make sure the expert understood. This is not for you to teach a class. This is for you to answer a very specific question and teach the fact finder.

00;39;20;03 - 00;39;45;16

Jennifer Corinis

So we're not looking at all sides dispassionately. We're looking at this one question. And I think based on what I remember from the book, and also they kind of touch on this in the movie is the experts were so wrapped up in their science and in their testing and everything else. And I'm not saying they should be advocates, but they just dumped all of this information in front of the jury, and then the jury had to try to sort this out without the benefit of any interaction with the expert.

00;39;45;22 - 00;40;05;02

Jennifer Corinis

And it was just way too much information, way too complicated. And I think it was fair for the jury when they ultimately said, you know, that they found Grace liable was just kind of their eyes glaze over and say, tie, it's a tie for the scientific evidence, or we just can't figure it out. So because somebody was seen dumping, we're going to find liability.

00;40;05;02 - 00;40;34;02

Jennifer Corinis

So expert testimony is required. I mean you can usually get out of a case if somebody doesn't have an expert or if you get them knocked out as being not competent. So you have to have an expert who can explain why there is causation in a particular case. But here I think the experts, and whether it's preparation or the experts themselves, kind of did a disservice to the jury by giving such a dense academic presentation that they forgot that they really had to help this jury reach a conclusion.

00;40;34;05 - 00;40;53;13

Jonathan Hafetz

Yeah, it's really important that the expert has to lay it out in clear terms, and that the lawyer has the responsibility of ensuring, in the selection of the expert, in the questioning of the expert, that it's digestible. I mean, I wonder if also the jury it was easier for them to dismiss the case against Beatrice because they led the case against W.R. Grace.

00;40;53;13 - 00;41;05;03

Jonathan Hafetz

Go forward. They said, look, we don't know. It's confusing as to Beatrice, but in any event, there's a company, there's enough evidence there. And so the plaintiffs are going to get something and get some compensation as opposed to the plaintiffs walked away empty handed.

00;41;05;05 - 00;41;24;09

Jennifer Corinis

Yeah. I mean, it's rough justice, but I suspect that is probably something that played a role. Again, that notion of it's scientific is kind of a tie. So we don't feel comfortable saying, you know, the case is over. We can't figure it out. But because we have this at least is culpability on behalf of Grace instead of Beatrice, we don't have anybody that we saw dumping.

00;41;24;09 - 00;41;34;28

Jennifer Corinis

We're going to keep Grace and let Beatrice go. And it was definitely, I think, easier for them to do that. These are two big companies. It's confusing at least one of them is staying to answer for this.

00;41;35;00 - 00;41;54;03

Jonathan Hafetz

You mentioned settlement before, which, as the film itself makes clear, is a key factor. And the way in which the overwhelming majority of civil cases, as well as criminal cases are resolved. If a case is able to survive through the various stages of motion practice motion to dismiss. Motion for summary judgment and then all that's left is trial.

00;41;54;04 - 00;42;26;21

Jonathan Hafetz

Many, many cases. Most cases will settle, especially in cases involving lots of money because litigation is so unpredictable. Right in here. Even though the defendants, as the film describes on multiple occasions, make overtures or offers to Qlik men for not insignificant sum, there's a great scene between Lincoln and Robert Out and Robert Duvall kind of Opaquely offers him, $20 million, and Lincoln declines the various settlement offers to the dismay of his partners, why the selectmen reject these offers.

00;42;26;21 - 00;42;29;29

Jonathan Hafetz

And what do you think of his decisions?

00;42;30;02 - 00;42;47;22

Jennifer Corinis

So there are two great scenes. You know, the one you describe when they're in the hallway, when the jury is out and sure puts a 20 down and says, what if there are six zeroes on that? That's very interesting. And when she looked up and said, if you're serious, let's get the decision makers in a room. And Thatcher says, I'm Mr. Beatrice, I don't have to call anybody.

00;42;47;22 - 00;43;09;12

Jennifer Corinis

We're like kings moving money around. And that probably was the case for crasher. I mean, on behalf of the company, he probably had an upper limit, probably more than 20 million that he was authorized to offer to resolve the case. Should've been really should have gone to the families. I think that movie kind of glosses over it. I think in some cases he did, but I think there was at least one instance where he didn't go to the families and present the offer.

00;43;09;12 - 00;43;35;03

Jennifer Corinis

And I don't know that there is an agreement with them. I mean, I think he kind of said, well, they want an apology, and money isn't the most important part of this, but I think he definitely should have presented that 20 million and he definitely should have taken it. So that was interesting. And it's very revealing in the end when and I'm getting ahead of myself here after he meets with Grace and he tells his partners that they're offered 8 million, and William H.

00;43;35;03 - 00;43;52;14

Jennifer Corinis

Macy is just losing his mind when he hears this, like when rejected. And he says, well, would you settle for ten? He said, yes. He says, let me get this straight. You will settle for an amount they're not going to give us. And I was like, I just feel like there's more. I feel like there's more. And that was even true in the very beginning when they had that very memorable settlement, negotiation.

00;43;52;15 - 00;44;11;08

Jennifer Corinis

When she's been, they know richer to him. And they met at that very nice hotel and they had all this food. And she is clearly ready for a long day of negotiating. Roll up our sleeves. And she comes in late. Of course, I'm sure that was by design. And then, Shipman starts off, he's got his partners there and says, like 25 million.

00;44;11;08 - 00;44;30;20

Jennifer Corinis

After he informs them how much their company's made the previous year. So Cheeseman doesn't have a very good poker face in this movie. I doubt that's actually the case, but he kind of glances over at his partner, desert, and nods like a bad choice. Man sees this, and so then he immediately starts layering on more demands. And 25 million for his study.

00;44;30;20 - 00;44;47;19

Jennifer Corinis

And his partners look at him in alarm like that was not planned, and 1.5 million for family for 30. He just keeps on and on and on and on. Which then prompts Bashir to have a question, which is can he keep the pen? He walks out because he accurately assesses that this is not a serious discussion. It should have been.

00;44;47;19 - 00;45;06;27

Jennifer Corinis

It could have been, but if it was just going to keep going up and up and up, it wasn't a serious negotiation. Angus laughed. And then that prompted Cheeseman and his team to leave. Do one can definitely criticize Schlecht man's approach here to these settlements. We can talk about the end to what the families said, but, that's why this case, I think, is used in law school a lot.

00;45;06;27 - 00;45;11;22

Jennifer Corinis

At least the movie is to say, like, I've got to tell you, Kline's settlement offer.

00;45;11;24 - 00;45;26;17

Jonathan Hafetz

And the idea about the apology. I mean, I don't know what you think, but the apology is don't come there. Really. I mean, the settlement would be probably structured something along the lines of, we're going to give you X amount of dollars and we're not going to admit liability. So it's some extent kind of unrealistic or no.

00;45;26;19 - 00;45;43;01

Jennifer Corinis

It is unrealistic. And it's also a real mismatch in the goals of the lawyer and the client. The client makes it very clear at the beginning. And Anderson, I think it is, said she wants me to come knock on her door and say, you did this. We didn't mean to. We're very sorry. And then I think it's off.

00;45;43;01 - 00;46;00;23

Jennifer Corinis

Hero is his name, who's lost his son, wasn't to clean it up at the end. So there's a real mismatch there and expectations and goals. And I think that that certainly is a criticism that's fair for Lipman is that, you know, he tells and Anderson and I think the family is that you know, the only way to get an apology is through money.

00;46;00;23 - 00;46;21;18

Jennifer Corinis

And that's that's really true. I mean, you don't usually see the public apology. It comes to mind. Was the lawsuit involving the voting machines recently where Fox News was accused of making misstatements and they had actually issued an apology. But it's pretty rare that that happens. So that was just not going to happen here in southern is right.

00;46;21;18 - 00;46;29;00

Jennifer Corinis

And the way that they apologize, if you will, or better said, compensate a victim if they were wrong, is with money.

00;46;29;03 - 00;46;45;19

Jonathan Hafetz

He sort of forgets that understanding which he started the film with. The level of the award corresponds to the depth of the apology. I mean, that is a way people speak. That's the language of apology is money in a large toward student. But he sort of forgets that in a way, or doesn't think that the apology is large enough, one or the other.

00;46;45;23 - 00;47;12;03

Jennifer Corinis

Yeah, the end is really painful because or near the end, when he goes to see the families, because he already feels like he's lost, because he didn't get a lot of money for them. But the families feel like he lost because they didn't get an apology, and they're not going to clean it up. So that mismatch continues, and it's really, really difficult to watch the families as they're realizing you're getting $300,000, which has told them how a company apologizes.

00;47;12;03 - 00;47;30;26

Jennifer Corinis

They're not going to clean it up, they're not going to admit wrongdoing or anything like that. And it's a very difficult thing to watch. And again, it just goes back to, at the outset, not managing the client's expectations. Well, not saying, you know, look, we're not really the entity to make them clean it up. That would be a governmental entity.

00;47;30;26 - 00;47;40;11

Jennifer Corinis

But what we can do is get compensation for your loss. That's all we can do. We can't get an apology. Things like that. So that was something that was a thread throughout the movie.

00;47;40;13 - 00;48;00;03

Jonathan Hafetz

Shakman tells them they're going to apologize through the damages award. That's how you'll get your apology. And then all he's able to come up with is a paltry sum of 300 plus thousand dollars, given the magnitude of the loss of their children. So it's like they're not really even apologizing. And if I'm not wrong, Sigman further reduces the firm's fee in the case.

00;48;00;03 - 00;48;17;16

Jennifer Corinis

Yeah, they recover the costs, which they really had to, and then they did cut their fee pretty significantly in recognition that they really had not served the clients as well as they should have. And, you know, and Anderson says, you told us that they apologize to you. Many. Do you think that this is an apology, a meaningful apology or whatever?

00;48;17;17 - 00;48;38;04

Jennifer Corinis

And she says, no. And it is that moment of self-awareness. They show his hand gripping the chair, like how difficult this is for him. And he says no. And then he apologizes to her and she walks out. It's probably not exactly how it happened, but certainly I understand her reaction to that and dismay of you're the one that told us this is how they apologize.

00;48;38;04 - 00;48;44;12

Jennifer Corinis

Now this is all you have. It was never about money. But if you're telling us this is the one way they apologize, this is not an apology.

00;48;44;15 - 00;49;11;27

Jonathan Hafetz

Another interesting thing about an Anderson who played by Kathleen Quinlan, the named plaintiff in the lawsuit, her and some of the other family victims. They are sort of reduced just in the movie to plaintiffs, right? They're not really actors. They get Stickman to take the case, but in fact, the family members, local activists, journalists had long been engaged in advocacy over the contaminate water in Woburn, including with the city government, and Anderson, whose 12 year old son had died of leukemia.

00;49;11;29 - 00;49;35;20

Jonathan Hafetz

I've been one of Bowman's leading advocates here. I think there's more to unpack. The film doesn't really talk about the family's role in their advocacy they've been doing. It also suggests that sick means lawsuit is what triggered the EPA. The Environmental Protection Agency's investigation, which is what led to the $68 million fine and court order cleanup, as well as the indictment of the Grace Corporation.

00;49;35;22 - 00;50;06;09

Jonathan Hafetz

But, the state investigators have been looking into contamination before. So I come in, sued and found in 1979, again, well, before the lawsuit that the municipal wells that provide the drinking water to Anderson's neighbor were contaminated with industrial solvent. What do you make of these criticisms of the film, its treatment of the victims and the non inclusion of the various other actors, and sort of the elevation of the role of Sugarman as the person who ultimately instituted the change in Woburn.

00;50;06;11 - 00;50;32;06

Jennifer Corinis

You know, it's a fair criticism. The book does a much better job of tracing that and talking a lot about that. So it's a fair criticism. But at the same time, I think it causes a mismatch, of expectations. This is a movie about lawyers and the process of a trial. It's just about the lawyers. So if you go into this movie, expect this to be a broader look at companies and chemicals and activism and things like that, you're not going to get it.

00;50;32;06 - 00;50;54;17

Jennifer Corinis

This is very intentionally the movie, at least not necessarily the book. The movie is a sliver of the book, but it is very intentionally a drama about the lawyers. So the fact that it doesn't focus on that, I think it's just a function of the story that the filmmakers wanted to tell. It's a commentary on using the court system to compensate or victims or, you know, can you ever do that?

00;50;54;18 - 00;51;13;12

Jennifer Corinis

Who are these lawyers? Because in the end, I think you have a much more nuanced view of selection than you do at the beginning, when he's tossing his business card at some guy who just had a car accident, which shouldn't happen, doesn't usually happen. But I think that while that criticism is fair, if you're looking for the whole story, it really isn't.

00;51;13;12 - 00;51;21;22

Jennifer Corinis

If you understand at least my understanding of the movie, as opposed to the book, which is very intentionally a drama about these three lawyers and the judge.

00;51;21;24 - 00;51;46;12

Jonathan Hafetz

I think that's really well put it in a sense, they exclude out the other gradations and aspects of the story, because they want to make this a statement about law, the legal system, its aspirations, its shortcomings. And I think it does do that very well. It's kind of interesting. I mean, you could imagine a different film. You could probably imagine a TV mini series where you have many other characters because one of the other culprits, I think, in this story is Woven City officials.

00;51;46;12 - 00;52;12;15

Jonathan Hafetz

First of all, they constructed the wells in area that were already heavily polluted in the 1960s, and then they proved unresponsive when people like Anderson and other advocates were voicing complaints. So that's not the film they chose to make. But you could have a film where there are a lot of other players, right? And you can have the Woburn City officials who are, I don't know if you agree, bore significant responsibility, both in terms of where they put the wells and how they treated the victims when things started to come to light.

00;52;12;18 - 00;52;31;26

Jennifer Corinis

I mean, those wells are the link between the contamination and potentially the damage to the plant. And so that's absolutely right. And it reminds me, of unfortunately, a more recent example of like Flint, Michigan, you know, where there was lead in the water. And again, it city officials had a lot of responsibility here. And it's really shocking.

00;52;31;28 - 00;52;54;26

Jennifer Corinis

The movie touches on it. When you read the book, the amount of problems with the water, I mean, people were having skin infections. It smelled and it was discolored for years. That happened. And, you know, the laundry wasn't effective, things like that. So the people in the area that were served by those two wells in particular, had complained for years and years and years and Anderson especially, but all of them.

00;52;54;26 - 00;53;15;05

Jennifer Corinis

And to think that it would go on for so long with the officials doing somewhat cursory or superficial review of the wells, you know, they shut them down temporarily, and then they would just bring them back online and say, either fine was really pretty shocking. And I think by today's standards, although Flint, Michigan is an unfortunate exception to this rule, I think by today's standards that just wouldn't happen.

00;53;15;07 - 00;53;32;01

Jonathan Hafetz

To different time. And I guess partly as a result of some of the litigation like this, to, to change one of the other challenges just quickly that the film talks about that six minutes to try to get the evidence, try to get people to cooperate. Right. People do have pressure because they work for a company to try to say what really happened.

00;53;32;04 - 00;53;53;23

Jonathan Hafetz

And the center of that is the character played by James Gandolfini, the guy that he was in that role in the film. I think it was like right before Sopranos. So before James Gandolfini kind of hits with Sopranos, and he was fantastic in the role. Yes. Person who was sort of torn between not wanting to say what happened because of the employment pressures and just feeling an obligation to the community.

00;53;53;23 - 00;53;55;26

Jonathan Hafetz

I thought the film did a great job capturing that.

00;53;55;28 - 00;54;19;13

Jennifer Corinis

I thought so too, and I think that James Gandolfini, his character, probably stood in for a lot of the witnesses. But other than Jerry for I think that was my favorite character in the movie because his performance was so good and so nuanced. And for what he ultimately became in Tony Soprano, completely different role. He's kind of a quiet family man, and he's humble and he's really tormented by this.

00;54;19;13 - 00;54;34;14

Jennifer Corinis

But, you know, he ultimately does the right thing. And two points about his character. I'm glad you brought him up. First of all, in the deposition, when Shipman asks him if he ever saw anyone dumping and he says yes and then she's going to say, you know, you don't have to answer that. Do you want to take a break?

00;54;34;16 - 00;54;54;19

Jennifer Corinis

First of all, I doubt that happened because that is you don't do that in depositions. But, that was kind of a funny moment, too. And then later on, Schlichting goes to his house, you know, thinking this is an employee of a represented party. You don't think you're supposed to be doing that. So those are a couple of things that if they in fact happened like that, which I rather doubt were ethically questionable.

00;54;54;19 - 00;55;18;09

Jennifer Corinis

But yes, his character was really terrific and like I said, probably stood in for several witnesses. But to see him wanting to, you know, not have people at work angry at him, it's a small town, you know, but then he goes home and he's watching his wife pass around a pitcher of water to his family, and then he goes to see an Anderson, and he's clearly burdened by his conscience, and then comes clean and starts naming names.

00;55;18;11 - 00;55;21;08

Jennifer Corinis

It's a really, really great character.

00;55;21;11 - 00;55;37;01

Jonathan Hafetz

He's very different, the character in the film then Tony Soprano. But you do see a little bit of the same kind of suppressed rage, how he acts on it in a very different way in the film, cooperating with the legal process as opposed to what, Tony Soprano. Right. You're going to can see the Bernie in the eyes. I mean, he's seeing that the tragic loss of James Gandolfini.

00;55;37;01 - 00;55;38;14

Jennifer Corinis

For sure, for sure.

00;55;38;16 - 00;55;48;28

Jonathan Hafetz

Are there any other aspects of the movie that were notable or, you know, where the things that maybe the movie left out in order to tell the story? Destruction.

00;55;49;01 - 00;56;14;06

Jennifer Corinis

So other things that I think are notable about the movie, there's a kind of global comment is you start off with Lichtman very confidently describing the trial process and saying these things about it. So he's the voice at first, but then it switches to fashion as he's teaching these evidence classes at Harvard. Then he's the one who's kind of narrating through his class what trial is supposed to be and how one conducts the trial.

00;56;14;09 - 00;56;31;00

Jennifer Corinis

So I thought that was very interesting, that it really switches. And it was also really interesting too, that there is a quote from Schlick in the beginning where I think he says something like, you can't take on your client's pain, and if you do, you shouldn't be practicing law. And then that's exactly what he does. And you're in contrast.

00;56;31;00 - 00;56;46;05

Jennifer Corinis

And he's not dealing with devastated families, but he knows that he never really loses sight of that. But it's just interesting to see it switch from, you know, not that fascism is my generator, but it goes from like men talking about the purposes of trial to fashion through the evidence classes. So I thought that was really interesting.

00;56;46;07 - 00;57;08;26

Jonathan Hafetz

Yeah, it's really interesting. You know, it starts with Shipman's perspective on the legal system, but it's really ultimately fatuous that the film leaves us with, let me play this clip of this colloquy or exchange between man and basher, which kind of gives a little bit of a dark view about the legal system, including its ability to deliver truth and justice.

00;57;08;28 - 00;57;12;19

A Civil Action Dialogue

To take the truth.

00;57;12;21 - 00;57;21;24

A Civil Action Dialogue

The truth. That's what you were talking about. Let's.

00;57;21;26 - 00;57;22;26

A Civil Action Dialogue

Use the place to look for.

00;57;22;26 - 00;57;34;08

A Civil Action Dialogue

The truth you're looking for. I didn't think you sent us into some real sweat into.

00;57;34;14 - 00;57;47;05

A Civil Action Dialogue

That just yet. Let's fit you out. That's not how you made a little money all these years. You want to know, in this.

00;57;47;05 - 00;57;51;02

A Civil Action Dialogue

Case, that being about the children. The minute you filed a complaint.

00;57;51;05 - 00;57;56;02

A Civil Action Dialogue

The minute it entered the justice system.

00;57;56;04 - 00;58;01;21

A Civil Action Dialogue

I know, like, yeah, yeah, that's. Why don't we.

00;58;01;23 - 00;58;06;01

A Civil Action Dialogue

Just too perfect the face of the righteousness about the false.

00;58;06;04 - 00;58;09;18

A Civil Action Dialogue

Christ.

00;58;09;21 - 00;58;10;00

A Civil Action Dialogue

That's a.

00;58;10;00 - 00;58;12;17

A Civil Action Dialogue

Sentiment I said, well, it's not.

00;58;12;20 - 00;58;19;23

A Civil Action Dialogue

It's not that I hear. Doesn't the IRS tell us to have a lead on any eventual settlement?

00;58;19;23 - 00;58;22;07

A Civil Action Dialogue

You know, you will have $1 million.

00;58;22;12 - 00;58;40;17

A Civil Action Dialogue

In unpaid taxes, but that's like what this. Seals up to that would be what? And others.

00;58;40;19 - 00;58;41;28

A Civil Action Dialogue

That is a.

00;58;42;01 - 00;58;52;18

A Civil Action Dialogue

Social justice center. Question. Should I talk some of the decision makers to get our tax rates? The decision taken.

00;58;52;18 - 00;59;02;14

A Civil Action Dialogue

Here, you're looking at this, which I don't have to call anybody. Do you?

00;59;02;16 - 00;59;11;06

A Civil Action Dialogue

Just your name. Well, I can't, so I should cast aside the things to say.

00;59;11;11 - 00;59;13;08

A Civil Action Dialogue

Make some others.

00;59;13;11 - 00;59;20;24

A Civil Action Dialogue

Money. I'm telling you.

00;59;20;26 - 00;59;27;21

A Civil Action Dialogue

I leave this here. I go back down the hall to my son and you. Look for.

00;59;27;22 - 00;59;29;01

A Civil Action Dialogue

The truth.

00;59;29;04 - 00;59;34;17

A Civil Action Dialogue

Look for where it is. Probably me.

00;59;34;19 - 00;59;38;08

Jonathan Hafetz

Does the film get it right? I mean, this spot. You're right again, you know.

00;59;38;08 - 00;59;55;08

Jennifer Corinis

Gosh, I feel like I'm coming down much more on teen passion than I expected to, but, yeah, I the film kind of does get it right. And I think that all of the characters recognize that the trial is a corruption of the process, and fashion knows that to this case stopped being about the truth as soon as you filed a lawsuit.

00;59;55;10 - 01;00;26;09

Jennifer Corinis

And that's not to say that a lawyer who is seeking the truth and files a lawsuit is wrong. That's the only thing you can do. I think the bigger point is that the system for a case like this is probably not the best vehicle. I don't know what the answer is. It's what we have. But it's not wrong because you have rules of evidence and you have experts, and you have jurors who are asked to draw upon their common sense to reach a conclusion, being confronted with a month of very technical expert evidence.

01;00;26;09 - 01;00;48;28

Jennifer Corinis

So the truth is very difficult to find in a courtroom because of all of these other considerations. So it is a bit too dark, in my view, because I do think that the system that we have incentivizes settlement, which I think is a good thing. And there are times when you have to go to trial, you have to vindicate a principle through trial.

01;00;49;01 - 01;01;12;26

Jennifer Corinis

And in the appropriate case, it probably wasn't the right case. In fact, I'm sure it wasn't. a trial can be the right thing to do, and I defended a few cases at trial for that very reason. And it wasn't that anybody failed, it was just that we really couldn't agree. It was too consequential. And while it may not have been it probing search for the truth, it really was about principle and it was worthy cause.

01;01;12;26 - 01;01;17;28

Jennifer Corinis

But to say that a trial is not a pure search for the truth is accurate and fair.

01;01;17;28 - 01;01;36;05

Jonathan Hafetz

I think dispatcher says right, if you want to look for it, I think no pun intended, it to the bottom of the dark. Well, I mean, and who knows, if Sigmund had settled for more money, maybe the truth would not have been uncovered, right? There would have been no final determination, but there would have been some approximation of justice in terms of what the system can deliver.

01;01;36;05 - 01;01;45;03

Jonathan Hafetz

And then you do have the other aspect, the EPA investigation, which does lead to a significant fine and to the cleanup. That's right.

01;01;45;06 - 01;02;07;20

Jennifer Corinis

And it doesn't compensate the families, but that really is the better way to deal with a situation like this, terrible as it is, is to have a company, if they're found culpable, to have them held accountable, punished and forced to clean it up. That's what the families wanted. The trial system, court system could not deliver that. So it came in the form of regulators later on delivering that for them.

01;02;07;22 - 01;02;31;19

Jonathan Hafetz

One other thing that comes to mind is that some of the difficulties faced by slick men, and some of the tactics perhaps used by his adversaries in the case, recalled those from some of the other large mass toward litigation at the time. And I'm thinking, really, of the case against Big Tobacco, where you have some of the same challenges in terms of proving causation, of some of the potentially very harmful effects and large damage awards.

01;02;31;19 - 01;02;35;21

Jonathan Hafetz

So are there any connections that are in the film, either explicit or implicit?

01;02;35;24 - 01;03;00;11

Jennifer Corinis

Definitely. And I think the scene that best depicts that is when it's a compilation of fashion from deposing the families, when he's trying to do what they did in the big tobacco cases, which is sow doubt about causation and try to point to either other environmental factors or lifestyle choices that may have led to the injury. And so we see fashion going through these questions.

01;03;00;17 - 01;03;27;13

Jennifer Corinis

Peanut butter. Do you have fillings in your teeth? Use hairspray, the bacon, pump your own gas, things like that. He's clearly setting that up so that he can try to defend the client by saying these other things contributed to or caused or are so confounding, can't tell. And that's something that happened a lot in the tobacco cases where it really is difficult sometimes it I mean, it seems really obvious you smoke, it's going to cause lung cancer.

01;03;27;16 - 01;03;35;20

Jennifer Corinis

But a lot of folks had other lifestyle choices or environmental factors that could have contributed to their harm. And that's the same approach that was used there.

01;03;35;23 - 01;03;52;29

Jonathan Hafetz

That's a great point. I think it's also interesting in terms of the tobacco cases, which I think are different for various reasons, but where the system does produce some positive outcomes in terms of some of the reforms that grew out of the tobacco litigation on regulation of smoking, smoking practices.

01;03;53;02 - 01;04;18;24

Jennifer Corinis

I totally agree. I mean, this is very similar type of challenge, and I would suspect the tobacco cases probably had very similar complicated scientific evidence. And it is our job to say that there is a possible alternative explanation. I mean, I would do that in a trial if someone had, say, a soft tissue injury from a slip and fall or something like that, and they're claiming damages because of this.

01;04;18;24 - 01;04;37;00

Jennifer Corinis

There could be other factors. They may have arthritis. Their medical records may reveal that they ended up playing softball, or that they had some history of a joint disease or whatever. It is your job to try to tease out what those other factors may be that could contribute to, or cause the harm about which they're complaining.

01;04;37;03 - 01;05;01;01

Jonathan Hafetz

Even in the film. Really bad dude. You know, in another situation, it could be maybe someone different, someone who owns a business, who is not actually responsible. And there's an effort to attribute the harm to him. So yeah, in this case, he was the bad guy. But the system's there to kind of protect those other individuals because it's not it's not necessarily the person who industry near where the water was contaminate is not necessarily one who responsible.

01;05;01;04 - 01;05;37;23

Jennifer Corinis

And it is fair to that. The film, I think, does a pretty good job of highlighting that. And she's been both view this as, oh, we're just deep pockets. That's why you're suing us. It's not because you really have proof that we did something wrong, which was the reason for Cheese Man's Rule 11 motion. And that certainly is the case sometimes when the federal government, one of the deepest pockets around and people, there were some plaintiffs who were opportunistic and thought that they could file a lawsuit and try to get a paycheck from a defendant, from the VA or from whatever government agency it was, because they had deep pockets, and that if they sued,

01;05;37;23 - 01;05;56;28

Jennifer Corinis

they could extract some sort of settlement. And so it was really important. I mean, especially there I was defending taxpayer money. I saw myself as protecting it and having to be responsible. And it would have been irresponsible if I didn't at least explore whether there were other reasons that this person was harmed. In the end, if we determined that they were, we compensated them.

01;05;56;28 - 01;06;04;09

Jennifer Corinis

But part of my job was to examine that. There's nothing wrong with that. And I think fashion is a character. Does that really well in the film.

01;06;04;11 - 01;06;25;04

Jonathan Hafetz

Let me ask you about that. In addition to settlements often not containing an apology or an admission of guilt, they can often be confidential, which is one way to potentially address the concern that Sydney Pollack, playing the head of aunt Grace, expressed that there'll be this kind of shark effect, that if people see us settling with the Wilburn victims for this, much everyone else is going to come is going to be a feeding frenzy as you keep the settlements confidential.

01;06;25;11 - 01;06;31;14

Jonathan Hafetz

Unless I'm incorrect, that's not an option with the government. And based on my experience that the amounts are discoverable.

01;06;31;20 - 01;06;55;27

Jennifer Corinis

That's another thumb on the scale. I sort of had the luxury of having other things to concern myself with when I was in the government, which was I was more likely to settle, not for a larger amount. If I really thought that there was culpability or negligence, because that felt like the right thing to do. It sounds kind of corny, but because I was representing the taxpayers, I really wanted to stand in their shoes and try to approximate.

01;06;56;00 - 01;07;14;04

Jennifer Corinis

If I were to pull them and say, look, this thing happened, what do you think? It's the right thing to do? Whereas in this circumstance, it's not that I'm not trying to do the right thing, but it's just a very different calculus. Florida has pretty robust sunshine laws, where a lot of things involving government agencies has to be out in the open.

01;07;14;04 - 01;07;39;20

Jennifer Corinis

They have that same pressure of not only the amount being out there may incentivize people to bring lawsuits, but it can also bring questions from the taxpayers of why did you essentially give away that money, which is absolutely fair if you're dealing with public funds to have those questions. But it's a challenge that private companies don't have their shareholders or may have questions, but it's not going to be the public at large.

01;07;39;22 - 01;08;01;14

Jonathan Hafetz

So the film focuses on the case brought by the Woburn victims and what happened to the trial and the settlement. But it has a much longer history, including a history after where the film cuts off. There's also a separate history involving Shipman himself. We get a piece of that when he appears before a bankruptcy judge. Great cameo by Kathy Bates asking where all the money went.

01;08;01;17 - 01;08;05;06

Jonathan Hafetz

Can you just talk a little bit about the kind of subsequent litigation?

01;08;05;09 - 01;08;21;07

Jennifer Corinis

I don't know if anyone else experiences watching the film, but I have to say I was a little bit sort of distracted to see Annie Wilkes as a bankruptcy judge. Seeing Kathy Bates, there was really something is kind of funny now, in retrospect. Anyway. Yes, there is that what happened to man after the fact? His partners went their separate ways.

01;08;21;07 - 01;08;42;21

Jennifer Corinis

The movie depicts that that happened. Six men went bankrupt. He had virtually nothing to his name. It took me years to rebuild that. So that's his story. But then the case went on for a long time. There was an appeal and a new trial race, I believe, sued their insurer for failing to defend them. So there was a lot of litigation that continued on after the fact.

01;08;42;21 - 01;08;47;29

Jennifer Corinis

But, for the purposes of this movie, it makes sense that it was just this snapshot in time of just this trial.

01;08;48;02 - 01;08;55;24

Jonathan Hafetz

And some of the subsequent litigation involved issues over the disclosure of non-disclosure of documents to the plaintiffs. Right.

01;08;55;26 - 01;09;27;03

Jennifer Corinis

Right. I believe there is evidence that Riley had commissioned a study or gotten a report that suggested that there was some contamination. I don't remember exactly how it was that that was not turned over. But yeah, there was some litigation over that. I think there's also litigation, if we're not mistaken, over the extremely dense and complicated questions that the judge posed to the jury after the liability phase, which were just almost incomprehensible and inevitably going to lead to confusion.

01;09;27;03 - 01;09;29;14

Jennifer Corinis

I think that was also part of the subsequent litigation.

01;09;29;16 - 01;09;43;11

Jonathan Hafetz

Yeah. Additionally, there was litigation by Riley himself, the former owner, John Riley of the Woburn Tannery, sued Jonathan Hahn Random House, the publisher, for his depiction in the book. Yeah, a lot of satellite.

01;09;43;13 - 01;09;54;11

Jennifer Corinis

Sure. And I can understand why Riley would not be happy about his portrayal in the movie or in the book. It is definitely not flattering. Yeah. So it had many, many lives after this.

01;09;54;13 - 01;10;07;15

Jonathan Hafetz

In his defense, in the movie, the one thing he said is, look, this is a family business. We've stayed here. We employ people in the community. Fair enough. But that doesn't outweigh dumping carcinogenic toxins in the drinking water. So, actually does not come off. Well.

01;10;07;17 - 01;10;17;12

Jennifer Corinis

He does not. And then you have, you know, James Gandolfini as character, saying we were told to clean it up and call it a way. After the litigation had started, I believe, which is a problem.

01;10;17;14 - 01;10;37;23

Jonathan Hafetz

Big brother. Chad, it's been so great to talk to you about this movie and share your expertise as a litigator with decades of experience in civil litigation on the private sector, in the government and also in Boston, and just to reconnect again after our workshop in Boston with Judge Lynch. So it's wonderful to have you on the podcast, and thanks again for joining.

01;10;37;25 - 01;10;46;01

Jennifer Corinis

I'm really, really grateful that you asked me. And it was a lot of fun. It's great to talk to you again, and it's really a very interesting movie to talk about. So I enjoyed doing a deep dive with you.