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

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

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

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

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

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

I hope these observations and questions help generate some thoughts of your own. If so, please share them in the comments below and/or via Twitter (#unclawbookclub) and Facebook. I look forward to writing more in several days and to engaging in further conversation with you.

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


RE: Prof. Tamar Birckhead Offers Insight on 'A Civil Action'
I’ll preface this post by saying that I read the book last Fall and don’t recall a lot of the details.

But I remember thinking how much the deck is stacked against ordinary folks who are suing big corporations in toxic torts cases. And I’m not only talking about how corporations can afford to hire the best legal teams, although that’s certainly true. But reading how difficult it was for Schlichtmann and his team to connect the toxic waste from the tannery and the W.R. Grace plant to the wells and also to the leukemia, it got me wondering what standard of proof plaintiffs need to meet in toxic torts? I think about how much more toxic our environment has become in the years since the Woburn case and how many more chemicals are on the market now and I can only imagine how difficult it would be to prove that a particular company’s toxic waste or product caused illness or death. I imagine that attorneys for corporations defend their clients by arguing that there are so many toxic chemicals in our environment that could have caused the plaintiffs’ illnesses (whatever they may be) that it would be impossible to find their clients responsible. Would the Woburn plaintiffs be successful today?

The book also got me thinking about “tort reform” which refers to efforts by state legislatures to prevent so-called “frivolous lawsuits” or otherwise limit the liability of corporations and individuals in lawsuits. Among these reforms are laws limiting the amount of damages that plaintiffs can be awarded in civil cases, among other things. If the Woburn case occurred in a state where such laws had been passed, how might that have influenced the way each party approached the case. There is also the rise of “mandatory arbitration” clauses in contracts where individuals agree to relinquish their right to a trial and instead would go before a private arbitrator. Here is a link to an article in yesterday’s News & Observer about this and how employers are using it to their advantage.

Posted by Corey Frost on Mon. July 15, 2013 2:23 PM
RE: Prof. Tamar Birckhead Offers Insight on 'A Civil Action'
Corey -- thanks so much for commenting. Yes, I agree completely that causation is probably one of the most difficult aspects of the case for plaintiffs' lawyers to prove. I defer to my more learned colleagues in this, as it's not my area of expertise, but my understanding is that the standard of proof is determined via each state's case law. For instance, a New York appellate court recently reaffirmed the state's continued commitment to holding a plaintiff’s experts to a 'high standard of proof of causation' in toxic tort cases. In this decision, it was held that bare allegations of plaintiff’s exposure to various allergens and toxic substances resulting in illness was not enough. The Court concluded that a plaintiff must: offer proof of exposure to a specific toxin or allergen; quantify the level of exposure to some degree; and demonstrate that such level of exposure was sufficient to produce the alleged injuries. As for whether the Woburn plaintiffs would be successful today, it's really anybody's guess, but my sense is that it is more difficult than ever for plaintiffs to prevail in these cases. I also agree that with the advent of tort reform and mandatory arbitration clauses, the hurdles for plaintiffs are even more extreme. Again, I would imagine that if the Woburn plaintiffs faced these realities, they may have been either more willing to settle (and to settle for less) as well as less willing to pursue litigation in the first place. Thanks again for your comments -- and for the cite to the News & Observer article, which is directly on point.
Posted by Tamar Birckhead on Mon. July 15, 2013 4:43 PM
RE: Prof. Tamar Birckhead Offers Insight on 'A Civil Action'
Your questions about the purpose of the litigation process immediately brought the recent decision in the George Zimmerman case to my mind. Many have questioned the role of the jury in that case. Would the case have ended differently had the jury been structured differently? How would decisions rendered be different if cases were decided by judges instead of a jury? The quote 'a morality play watched by a public audience' couldn't more accurately reflect the Trayvon Martin case. The case has become a public debate about the merit of Florida laws, the actions of both Trayvon and Zimmerman, and the courts themselves. This example shows that the questions here about court and legal reform don't just apply to torts law or civil cases like the Woburn case. The legal system in all areas is a constant work in progress, with new and interesting cases like these being decided every day. Perhaps making attempts to reform in any area is a way to do good, even if it isn't just through public service. My interests lie in public service, but not every lawyer's will and that's what makes the law so interesting; there are so many paths to choose. But I think what's important to remember is that in every area of the law, whether it be civil, criminal, or otherwise, it is important to pay attention to how the litigation process affects legal outcomes and people's lives, and to how we can constantly strive to improve these systems.
Posted by Alexandria Weller on Tue. July 16, 2013 11:25 AM
RE: Prof. Tamar Birckhead Offers Insight on 'A Civil Action'
Alexandria: Thanks for your thoughtful comments. I, too, have been thinking about the parallels between the Woburn and Zimmerman cases, with the common thread being the limits of the adversary system -- and the law in general. Litigation, whether civil or criminal, is rarely about -- or has the capacity to be about -- a search for the truth, particularly when each party's 'truth' may be very different. I know that there's a lot out there about the verdict; I've found the following essay by Andrew Cohen to be particularly insightful, as he discusses the decision along these same lines: Thanks, Tamar
Posted by Allison L. Reid on Tue. July 16, 2013 12:54 PM

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