"A Civil Action" and Procedural Justice

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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. 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


RE: 'A Civil Action' and Procedural Justice
I think it is true in the case of most disputes that what people really want more than anything else is to have their concerns understood and validated by others. A sincere apology (without equivocation) is a valuable tool in resolving personal disagreements and relationship problems, and as complex as cases like the one presented in A Civil Action might seem to be, what people want to get out of the dispute resolution process might not be all that different from what someone wants from a relationship counseling session. With that said, my personal belief is that since corporations are not human beings and are guided by a legal obligation to maximize profits for their shareholders, the most effective (and maybe the only) way to alter the behavior of a corporation is to cut into its profits. In the case of the Woburn families, they might want to settle for an apology and a public airing of grievances with no admission of negligence, but if they look beyond themselves and truly want to make the deaths of their children mean something, the admission of wrong-doing is everything. Companies pollute generally, not because they are bad guys analogous to villains from Captain Planet, but rather because polluting is cheap (for them). So if you want to stop them from polluting, you have to make it cost more than not polluting.
Posted by Adam Maas on Wed. July 17, 2013 12:05 PM
RE: 'A Civil Action' and Procedural Justice
Adam: Thanks for your insightful comment. I completely agree that a public admission of wrong-doing could be the most effective result in terms of hitting Grace where it lives (i.e., bringing negative press, thereby cutting into profit margins). I may not have made this clear in the post, but this is what I imagined when I referred to “an apology and acceptance of responsibility.” I can see now, however, that there are several options that could be consistent with bringing about some degree of procedural justice for the families: a private apology with no public acknowledgement of wrongdoing, with or without a monetary settlement; a public apology and acknowledgment of wrongdoing, with or without monetary damages; and a monetary settlement without either of the foregoing. Resolving disputes of this complexity short of litigation could be particularly difficult given the challenge of achieving consensus among the many plaintiffs. As you know, in the Woburn case the families were committed to unanimity and to staying in it “together,” but I imagine this attitude is rare in such matters. Thanks again, Tamar
Posted by Allison L. Reid on Wed. July 17, 2013 2:36 PM
RE: 'A Civil Action' and Procedural Justice
The questions you presented here are ones that I was also considering when I read the novel. I truly believe that in this case, the family would have preferred an apology and a change of action from the company, rather than a large sum of money. In the section Rule 11, Gamache tells the executive at Riley that rather than suing him to get money, he simply wants to make sure that the wells don't open back up and that no one else has to suffer through diseases as consequence of the contaminated water. Rather than seeking money, it seems as though the plaintiffs in the case want action. They recognize at a few points that no amount of money can bring their children back, but that the case may be worth it if they can help prevent a similar fate for another family. In this instance, I believe that a chance to tell their story, create change, and have the children's deaths not in vain would have meant more than a sum of money. Additionally, I believe that such changes in behavior, such as not dumping and polluting hazardous materials, would affect companies such as those in the Woburn case much more than paying out to individual cases. I hear about cases such as this often in the news. Take, for example, a large company such as McDonald's. With seemingly endless sums of money (from an outsider perspective) it may be easier for them to pay settlements than to change their policies and dig deeper. I remember this case from around 10 years ago, in which McDonald's paid 10 million dollars in order to appease vegetarians who discovered their vegetarian options were not animal free. Even such a large sum of money cannot put a large dent in such a company's profits, as this article states that despite such a large sum they still increased in earnings that quarter. http://money.cnn.com/2002/06/05/news/companies/mcdonalds_a/ Perhaps cases such as these should focus less on money and more on action. No amount of money can undo the wrongs done by companies such as these, but the most beneficial course of action could be heavier scrutiny to ensure that no similar damages are done thereafter.
Posted by Alexandria Weller on Thu. July 18, 2013 11:16 AM
RE: 'A Civil Action' and Procedural Justice
Alexandria: thanks for sharing your thoughts. I hadn’t heard about that particular McDonald’s suit. Their initial response to the claim was classic obfuscation: “Oak Brook, Ill.-based McDonald's said it was not required by the U.S. Food and Drug Administration to reveal the use of beef flavoring, and that it didn't use the substance in fries sold at restaurants in India or predominantly Hindu countries.” It seems that they, like other big corporations that depend on good public relations for their profits, learned their lesson, as this proposal was part of the ultimate settlement: “The chain also said it has created an advisory panel on vegetarian and other dietary practices as part of the settlement. The group, including experts in consumer dietary practices, plans to advise McDonald's on relevant dietary restrictions and guidelines.” Thanks, Tamar
Posted by Allison L. Reid on Thu. July 18, 2013 2:09 PM
RE: 'A Civil Action' and Procedural Justice
Professor Birckhead, thanks for your response to my earlier comment. The questions you raise here got me thinking about the Wall Street financial crisis. The big banks (e.g., Goldman Sachs, Morgan Stanley, Citigroup) that wrecked our economy by engaging in predatory lending, selling toxic assets to investors, and then betting against those assets, had to pay relatively small fines. But my understanding is that none of them ever had to admit any wrongdoing (probably b/c that would lead to more lawsuits). A lot of people, particularly those whose pensions were wiped out and who lost their homes and jobs, were and are still angry about the small fines and that no Wall Street executives have faced criminal charges. Absent criminal charges and hefty fines, my sense is that an admission of wrongdoing by these executives would mean a lot to people and would be a major first step toward restitution. People hurt by the recession would feel validated and might believe that the reckless behavior by Wall Street executives will never happen again.

With that in mind, I think it's essential for big companies to both offer apologies AND pay big fines when they pollute or otherwise harm individuals and communities. As previous commenters pointed out, the only way to get the attention of large corporations (and change their behavior) is to hurt their bottom line. Make pollution costly. A public apology would offer some closure and affirmation to victims, and the big fines would make sure it doesn't happen again.

Posted by Corey Frost on Tue. July 23, 2013 8:53 AM

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