In my last post, I highlighted several themes that
resonated with me while reading “A Civil Action.” Now I will continue the
conversation with a discussion of the concept of procedural justice, as it
touches upon the questions that I posed regarding the purpose of the litigation
process and the lawyer’s duty to her clients.
One of the most striking aspects of the book for
me was the complete absence of the plaintiffs from the bulk of the
narrative. After Jonathan Harr chronicles the illnesses and subsequent
deaths of the Woburn children in the first few chapters, the plaintiffs aren’t
mentioned again in any meaningful way for hundreds of pages. It is not
until p. 316 that we hear of them again, when it is noted almost in passing
that the lawyers provide the families with daily copies of the trial
transcripts, which few of them read consistently. In contrast to the
total immersion in the litigation by Schlichtmann and his associates, we learn
that “as the weeks dragged on and the daily transcripts mounted into a towering
pile, [the plaintiffs’] lives settled back into the normal daily routine of
work and school. The trial — their trial — became a distant echo.”
The next mention of the families is not until p.
441 when they are beckoned to a meeting with Schlichtmann to discuss settlement
and their options. Although this is a process with which he has been intensely
engaged for weeks, having traveled to and from New York to meet with W.R. Grace
execs, it is the first time that he has updated his clients on the negotiations
— and it is the first time in over a year that any of them have visited their
lawyer’s office. During the meeting, they discuss Grace’s offer, and several
family members express that their top priority is not the amount of the payout
but to have Grace acknowledge and take responsibility for causing the illness
and death of their loved ones. When asked what would happen if Schlichtmann
advises them to accept an offer that they refuse, he replies (somewhat
disingenuously in my view), “I’m representing you, not controlling you.”
Soon thereafter, Judge Skinner accepts the
settlement agreement, which mandates that the judge declare a new trial for
Grace, thereby vacating the guilty verdict. Reverend Bruce Young, who had
supported Anne Anderson’s early suspicions that the water was causing her son
Jimmy’s illness, was particularly upset by the case’s resolution. He recalled
that Anne had once said that it wasn’t the money that was important to her, but
“that what she wanted was for J. Peter Grace to come to her front door and
apologize.” The reverend himself concurred, for he had “invested a lot of
himself in this matter, and to him taking Grace’s money without a full
disclosure by the company, or any expressions of atonement, cheapened
everything.” Anne, in fact, is so troubled by the way the case is resolved that
she and the Zona family hire an accountant and a lawyer to challenge
Schlichtmann’s claims for expenses.
The notion of procedural justice is that people
are more likely to comply with law and policy when they believe that the
procedures utilized by decision-makers are fair and unbiased. Its proponents
contend that procedural fairness plays a key role in people’s willingness to
accept a wide range of types of decisions, from U.S. Supreme Court rulings to
corporate drug-testing policies. Empirical research in this area has focused on
exploring why people are either satisfied or dissatisfied with a particular
dispute outcome and whether there is a relationship between the type of process
used and one’s perceptions of systemic fairness.
The finding that people care enormously about the
process and greatly value the opportunity to tell their own story, regardless
of the outcome, has been replicated across a wide range of methodologies,
cultures, and settings. For instance, in recent years it has been found
empirically that when doctors admit to medical error and compensate their
patients quickly and fairly when their error causes injury, the number of new medical
malpractice claims decreases, resulting in significant cost savings to the
profession. Similarly, it has been reported that at hospitals that have
acknowledged a preventable error and apologized to the patient, the number of
malpractice filings have dropped dramatically, saving hospitals significant
legal costs.
In reflecting on the Woburn case, I have tried to
imagine how an understanding and appreciation of procedural justice theory may
have altered the way in which the case was handled and the ultimate degree of
satisfaction felt by the victims.
- Would
the plaintiff families have preferred an apology and acceptance of
responsibility by Grace over a monetary settlement with no admission by
Grace?
- Would
Anne Anderson and the others have wanted an opportunity to tell their stories —
to speak at a public forum about the suffering of their loved ones had
experienced instead of hundreds of thousands of dollars?
- Would
Grace have been willing to consider such a resolution, knowing that there were
others with potential claims against them?
- Although
such an agreement would have certainly saved the parties time and money as well
as (for the families) heartache and uncertainty, what of the view that only
large monetary settlements succeed in "teaching corporate America a
lesson?”
Please share your thoughts as to these questions
as well as your general impressions of the book in the comments or via Facebook
or Twitter (#UNCLawBookClub).
Posted by Tamar R. Birckhead on Wed. July 17, 2013 10:00 AM
Categories:
Book Club