"A Civil Action" and Procedural Justice

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).