Blog Archive: 2013

"A Civil Action" - A Peek at the Rules of Evidence

A Civil Action book cover

As I promised in my last post, I want to get back to the conflict of myths that underlies our roles as lawyers in both civil and criminal cases. The reality of trial practice in America is that very few cases actually proceed to trial. Most criminal cases are resolved by plea, and most civil cases settle. As I said earlier, for judges, trials and wide-ranging searches for the truth about some big issue tend to be antithetical. Pretrial devices such as interrogatories and requests for admission are supposed to make sure the trial is only about the issues that are disputed. “A Civil Action” provides us with an opportunity to consider how evidentiary systems and civil pleading rules are designed to narrow, not broaden, the focus of the finder of fact.

In the book, the author reminds us that as a Harvard Law School professor, Charles Nesson had spent many years pondering the nature of judicial proof — proof in the courtroom — and its relationship to the truth. His very famous blue bus example demonstrates the difficulty posed by statistical probability cases. In the example, an individual is injured in an accident caused by a bus, and the company that operates 80 percent of the buses on the route is the Blue Bus company. As a matter of statistics, it is more likely than not — the burden of proof in civil cases — that the injuries were caused by a driver for that company. But as the book notes, Nesson was certain that “[a] verdict based simply on the odds, … even very good odds, has no legal or moral force, and sooner or later the public would find such verdicts and the judicial system that permitted them unacceptable.” By the time Nesson gets to court with the case as an attorney, however, he believes that half a billion dollars should or could change hands as a result of punitive damages, awarded on statistical likelihoods of cancer causation.

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No Comments | Posted by Richard E. Myers II on Wed. July 31, 2013 10:00 AM
Categories: Book Club

"A Civil Action" and Multiple Truths

My Jamaican grandfather used to say, “There are three sides to every argument; your side, my side and the truth.” And my mother used to ask my brothers and me, “What is this argument really about, because it’s not about this…” (whatever this happened to be, a slice of pizza, who got to sit closer to the television, etc.).

I’m happy to join this conversation about “A Civil Action.” In the book, there are multiple people with multiple visions of what the story was really about. There are people who were drinking contaminated well water. Many of them were made ill by something. There are the lawyers, who have very different visions of what that something was, and of the relative roles of plaintiff’s lawyers and defense lawyers, and of the import of the larger narrative. There are the competing government narratives – the engineer who certified the water safe, the mayor who was trying to avoid drought conditions and make water affordable, the EPA regulators who were trying to find out what happened, while avoiding being sucked into an acrimonious lawsuit. There are scientists and doctors trying very hard to account for water flow underground, and the timing of the leach of chemicals into wells, and the relative concentration of particular chemicals, and the carcinogenic effects of those chemicals. Some of them may have been acting in bad faith, others in good faith but misguided, others still may have been absolutely right. And there is our invisible narrator, who needs a hero for his story, and he has chosen plaintiff’s lawyer Jan Schlichtmann despite, or maybe because of, his flaws. Their varying roles were crucial lenses through which they viewed the facts of the case.

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No Comments | Posted by Richard E. Myers II on Thu. July 25, 2013 11:44 AM
Categories: Book Club

"A Civil Action:" Torts, Environmental Law, and the Right to be Free from Externally Imposed Harms

A Civil Action book cover

In my last posting, I told you that when I read “A Civil Action” the first time, it really started me thinking about the relationship between torts and environmental law, and also the whole basis for torts and other common laws in general.

At the time that the action takes place in the book, the Environmental Protection Agency and many states were first starting to really apply hazardous waste laws (CERCLA and RCRA) to real-life situations. When you finish the book, you will learn that the EPA and Massachusetts later conducted a clean-up of the Woburn site. Both CERCLA and RCRA require the contributors of hazardous waste to a location to pay for cleaning up or remediating a site so that there is no longer risk of increased health consequences to humans or the environment. These laws, passed in 1976 and 1980, were based on the power of Congress to “regulate interstate commerce,” a very important power that you will learn more about in law school. Public health is an interstate commerce issue and the reach of the companies that dispose of wastes (and the wastes themselves) also cross state boundaries.

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3 Comments | Posted by Victor B. Flatt on Wed. July 24, 2013 10:00 AM
Categories: Book Club

"A Civil Action:" The Relationship of Torts to Environmental Law

I was very pleased to learn that the book for entering first years at Carolina Law was “A Civil Action.” Like Professor Birckhead and many others, I first read this book over a decade ago, and it is a pleasure to read it again. I have perhaps had more of an interest in this book than even the other professors in the conversation because my primary area of teaching and scholarship is in environmental law, which is designed, in part, to control the effects of pollution on human beings. As you get to the end of the book, you will hear more about the parallel process of clean-up under federal environmental laws that is a complement to the tort case brought by Schlichtmann.

I am also a Torts professor, and the case described in a Civil Action is a torts case. Reading the book for the first time made me reflect a good deal on the relationship of torts to environmental law, and in fact inspired a vein of scholarship which I will discuss in my next blog.

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1 Comment | Posted by Victor B. Flatt on Thu. July 18, 2013 3:57 PM
Categories: Book Club

"A Civil Action" and Procedural Justice

A Civil Action book cover

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.

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5 Comments | Posted by Tamar R. Birckhead on Wed. July 17, 2013 10:00 AM
Categories: Book Club

Prof. Tamar Birckhead Offers Insight on "A Civil Action"

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.

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4 Comments | Posted by Tamar R. Birckhead on Thu. July 11, 2013 10:00 AM
Categories: Book Club

"A Civil Action" as an Introduction to Tort Law

A Civil Action

Terrible things happen. A bridge suddenly collapses, and cars and trucks plunge into the dark waters below. A crowded airliner misses its landing strip and breaks apart on landing. Mothers and fathers hear a life-changing diagnosis of a young child, found to have acute lymphocytic leukemia. Beyond the poignant responses of families and individuals, society itself responds in varied ways. First responders secure the scenes and search for survivors. Doctors and nurses provide care to the ill and injured. Civil and aerospace engineers move to examine collapsed bridges and downed aircraft, looking for structural flaws that can be repaired. Researchers in universities and biotech companies work to understand the causes of illness and to develop cures or preventive measures.

Lawyers also play important roles in addressing tragedy. At one remove, it is often lawyers who craft the statutes and regulations that establish minimum construction standards, or air safety protocols or restrictions on the use of unsafe chemicals. Yet long before the advent of the modern statutory and regulatory state in the 20th century, the Anglo-American “common law” devised a means to compensate victims who had suffered injuries because of the deliberate misconduct, reckless indifference or negligence of others. Even apart from criminal law provisions, enforced by state officials and punished by fines or jail time, the civil courts stood open to private parties who could come before a judge for personal relief. Sometimes those parties sought a judicial order to stop ongoing mischief – the operation of a dangerous nuisance or the reinforcement of a leaking dam just upstream from a populated area. More often, those parties sought a financial payment from those they deemed responsible in compensation of damages already suffered.

This system of “tort law,” designed for the resolution of private damage claims, is a major branch of the law. Its basic principles are taught during the first year at virtually all law schools nationwide. Within its domain are many subtle and time-tested ideas you will learn and weigh for yourself. The first 81 pages of A Civil Action introduces you to two elements that ordinarily receive far less attention in torts casebooks and reading:

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2 Comments | Posted by John Charles Boger (Jack) on Wed. July 10, 2013 10:00 AM
Categories: Book Club

Announcing the UNC School of Law 1L Book Club

A Civil Action

Stories are an important way to understand the world around us. This summer, for the first time, UNC School of Law is hosting a virtual book club as a gateway for entering Carolina Law students. We invite you to begin “reading the law” by turning to a riveting story. This is not an assignment (no exams, no grades!). Instead, we hope to open up a meaningful conversation with you, our entering 1Ls, to be joined by our faculty, a few of whom will write weekly blog posts about the book we’ve chosen that may dovetail with their legal interests and expertise.

For our inaugural book, we invite each of you to embrace a real-life legal thriller, A Civil Action, written by Jonathan Harr. It’s a story about childhood leukemia and the increasing suspicion, by the children’s troubled and grieving parents, that possible chemical contamination of a local stream may have led to their children’s illnesses and death. They contact a flamboyant plaintiff’s injury lawyer, who interviews scores of witnesses and buries himself in facts and legal theories about pollution, water tables, the medical impact of certain chemicals on childhood illness, and the intricacies of legal responsibility. Two large national corporations operating in the suburban Boston town where the illnesses arose are eventually sued. They in turn hire outstanding Boston law firms to investigate and defend their positions. The case moves into federal court during the 1980s. You’ll read how these real life lawyers struggle with the uncertain facts, a cast of reliable and less credible witnesses, the conflicting scientific evidence, and the complexities of the American legal system.

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3 Comments | Posted by John Charles Boger (Jack) on Wed. July 3, 2013 10:00 AM
Categories: Book Club

"Where Learning Is at the Center of Everything"

One thing many of our entering 1L students are typically curious about is the classroom experience at UNC School of Law. While the law school classroom environment is certainly not the same as is it was at the undergraduate level, it is not as intimidating as popular culture sometimes portrays it, for example as in "One L," Scott Turow's iconic memoir of his first year at Harvard Law School.

We asked award-winning UNC School of Law teachers Elizabeth Gibson, Burton Craige Professor of Law, and Joseph Kennedy, professor of law, to discuss their teaching philosophy and the first-year experience. Watch this video to learn more about their methods in the classroom and the importance of teaching at Carolina Law. You'll see that our faculty members are invested in their students' success and are truly engaged in the classroom.

We look forward to seeing you in August! In the meantime, keep checking the Carolina Law admitted students blog for important information.

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Posted by Michael J. States on Wed. June 26, 2013 1:43 PM
Categories: Admissions

Why Carolina Law? Kelly Anderson 3L Weighs In

Interested in learning more about your Carolina Law peers? This summer we are doing a series of interviews with a few of our students about why they chose Carolina Law and what they have enjoyed about their experience in law school thus far. Stay tuned to the admitted students blog over the next couple of months as we share with you the highlights from these student conversations.

Meet Kelly Anderson 3L and learn more about why she chose Carolina Law and how she gained skills and confidence through her work with the student-run Pro Bono Program.

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Posted by Michael J. States on Fri. June 7, 2013 12:35 PM
Categories: Admissions, Pro Bono & Public Interest
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