"A Civil Action" as an Introduction to Tort Law

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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: the unfolding circumstances that afflict families and individuals who may suspect that grievous injury or loss might have come at the hands of another. In an ordinary automobile accident or aviation accident, by contrast, the actual causes are far clearer. In other cases, such as the one that arose in Woburn, Mass., in the late 1970s and early 1980s, even the likelihood of causation is often murky and slow to appear. What are the causes of acute lymphocytic leukemia? Did Jimmy Anderson and Michael Zona and Kevin Kane and the other Woburn children contract their devastating illnesses, in part, because of ingestion of municipal waters drawn from Wells G and H? If toxic chemicals were eventually found in that water, were those chemicals present at the time the children contracted their illnesses or only later? Where did those chemicals come from: could they have leached through the soil and the water table from plants operated by W.R. Grace and/or the old J.J. Riley Tannery, purchased by the huge conglomerate Beatrice Foods?

A Civil Action provides an exceptionally finely wrought picture of the unfolding nightmare for the parents and children of Woburn, Mass., with its medical terrors and mounting doubts and concerns about what was happening. It also introduces you to a widespread feature of modern tort law, the “contingent fee system,” one that may seem to share the essential characteristic of Winston Churchill’s description of democracy: “the worst form of government except all the others that have been tried.” Under this system, potentially injured parties who cannot afford to hire a lawyer can contract with a lawyer willing to take on the entire investigation of their case and its presentation in court, in exchange for 30 percent, 40 percent or more of any eventual recovery of damages. The advantage to the injured parties are clear: but for this agreement, they have no means by which to bring forward their claim for legal resolution, except what is usually a legally inept personal presentation of their concerns.

The advantage for the party responsible is less immediately clear but obvious upon reflection: if they can outlast the resources of the plaintiffs’ lawyer, who must rely on his or her own resources to pay for the costs of litigation, they may prevail, whether or not their client is responsible, simply by having a “deeper pocket.” The disadvantage to a defending party, on the other hand, is that even a non-meritorious claim may be cheaper, in the end to pay, if the costs of defending it are higher than the eventual damages would be.

For society, the advantages of the system, if all the lawyers are shrewd and well-informed, is that many lawsuits will not be brought, or will settle short of trial and a verdict, as both the plaintiffs’ and the defendants’ counsel converge on their best estimates of the value of the lawsuit – the size of any eventual verdict discounted by its likelihood of success before a judge or jury.

One thing A Civil Action does better than any other book I’ve read is to suggest the special characteristics of lawyers drawn to the personal injury plaintiff’s side of modern tort litigation. To be sure, they are not all flamboyant, driven personalities like Jay Schlichtmann, the protagonist of this story. Yet most are lawyers willing to accept extraordinary financial risks, not for an assured salary or a fee, but instead for a recovery that will come only if they prove right in assessing the strength of their client’s case, as well as their own capacity to build that case, tell a convincing story to the judge and jury, and/or to persuade the defense lawyer’s that a pre-trial or mid-trial settlement, on the plaintiff’s terms, is the wisest course.

There is an underdog’s drama in the plaintiff lawyer’s position: he or she needs for their client to win, and they identify closely with their clients’ grief and loss. Yet there seems a darker underside to some. Some plaintiff’s attorneys can treat their clients like options to be exercised or forfeited, and even the most successful takes a large fraction of any recovery as a fee, at the expense of families whose lives have been devastated and whose needs are great. Yet without that contingent fee, those same families would, under our system, have likely have had no relief at all; the plaintiff’s lawyer is the indispensable actor to bring these aggrieved parties relief. You should reflect on the strengths and potential for weakness in this long-established means for tort recovery.

As A Civil Action moves forward, you will receive a far closer look at the complex factual investigation, the scientific uncertainties, and the play of legal procedures as the parties fence for relative advantage. The tension heightens as the case moves forward toward trial, as Jay Schlichtmann and his firm drill deeper into the case but simultaneously raise higher and higher their own financial stake and risk.

Questions? Thoughts? Leave a comment below or on Twitter (#unclawbookclub) or Facebook.

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


RE: 'A Civil Action' as an Introduction to Tort Law
The first three sections of the novel give a comprehensive look into an example of Torts law, an example that is very real and tangible through the detailed nature of the book. So often when we think about legal examples of torts law, we think about the parties in the case and the judgements that are involved, particularly involving money. But what I liked about this book in particular is that it brought an interesting perspective of the type of lawyer that it takes to put together this kind of case. In the media and in certain legal novels, lawyers that work with Torts can sometimes be termed 'ambulance chasers', those that hope to make a profit from someone else's misfortune. What people fail to realize, however, is how much work goes into putting together these kind of cases. We see that Jan put everything on the line for this case. He was hesitant to take the case from the start, taking a leap of faith and not knowing what evidence he was working with and how it will pan out. He immediately was working against legal restrictions and deadlines, filing his claims on behalf of the Woburn citizens just days before such claims would be deemed null. In the days before the verdict, we see how his life and financial stability has been dramatically impact by his involvement in the case. Such a personal look into the life of a torts lawyer gives a perspective different from what one may often see, which is grounds for a reconsideration of this type of law. These first few chapters also lead to a consideration of the way in which payment is given to lawyers in these types of cases. Is it inappropriate in some cases for lawyers to take such a large sum from winning parties in cases? Is the system flawed for operating in this way? What if Jan had decided he couldn't bear the financial burden, and such a critical case never would have come to be? Are there other similar cases that were never presented because parties could not afford to seek legal help, or even did not know how? I hope to formulate more educated opinions on these questions through reading more of this novel. I look forward to reading about what types of evidence it takes for Jan to put together a strong case, the progression that such a case will go through, and how the law affects each individual in the book, as well as the larger community.
Posted by Alexandria Weller on Wed. July 10, 2013 7:56 PM
RE: 'A Civil Action' as an Introduction to Tort Law
So far, Jan is depicted as having the financial habits of a high stakes gambler. The fee system in tort law necessitates an appetite for risk, but the the author contrasts his fiscal habits with Kevin's to show how immoderate his choices are. I'm interested to see if the book ultimately makes the case that only someone willing to gamble his fortune could have brought this case to trial.
Posted by Jessica Watts on Thu. July 11, 2013 1:24 PM

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