As I promised in my last post, I want to get back to the conflict of myths that underlies our roles as lawyers in both civil and criminal cases. The reality of trial practice in America is that very few cases actually proceed to trial. Most criminal cases are resolved by plea, and most civil cases settle. As I said earlier, for judges, trials and wide-ranging searches for the truth about some big issue tend to be antithetical. Pretrial devices such as interrogatories and requests for admission are supposed to make sure the trial is only about the issues that are disputed. “A Civil Action” provides us with an opportunity to consider how evidentiary systems and civil pleading rules are designed to narrow, not broaden, the focus of the finder of fact.
In the book, the author reminds us that as a Harvard Law School professor, Charles Nesson had spent many years pondering the nature of judicial proof — proof in the courtroom — and its relationship to the truth. His very famous blue bus example demonstrates the difficulty posed by statistical probability cases. In the example, an individual is injured in an accident caused by a bus, and the company that operates 80 percent of the buses on the route is the Blue Bus company. As a matter of statistics, it is more likely than not — the burden of proof in civil cases — that the injuries were caused by a driver for that company. But as the book notes, Nesson was certain that “[a] verdict based simply on the odds, … even very good odds, has no legal or moral force, and sooner or later the public would find such verdicts and the judicial system that permitted them unacceptable.” By the time Nesson gets to court with the case as an attorney, however, he believes that half a billion dollars should or could change hands as a result of punitive damages, awarded on statistical likelihoods of cancer causation.
For Professor Nesson, at least according to Harr, by the time of trial the case is about a different view of legal and moral forces. Speaking for the plaintiffs, Professor Nesson said: “They want to use this case to set an example, Your Honor. They want to send a message, to ring an alarm if you will, in the corporate boardrooms across the United States.” This struck Judge Skinner as precisely wrong. In a statement from the bench during a hearing a short while later, the judge responded: “You were trumpeting away about sending messages to the boardrooms of America. Lawsuits are between parties, Professor. One side seeks compensation and the other side defends against it. If the boardrooms of American happen to notice what’s going on, that’s an incidental consequence of the process. It’s not the purpose of it.” For many outside observers, this narrower view of the purposes of the system makes the courts appear impersonal and unresponsive. For others, it makes it objective and dispassionate.
The prevailing view is reflected in the Federal Rules of Evidence. (The rules of evidence in most state courts are based on the Federal Rules of Evidence.) The rules are designed to limit the entry of extraneous or irrelevant material, limit appeals to passion, and focus the participants and the fact-finder on only those facts that make the issues in the case more or less likely to be true. The first statement in the rules that addresses their purpose is Rule 102: “These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”
Evidence is relevant, and therefore admissible, only to the extent that it makes a fact at issue in the case more or less likely to be true. And even relevant evidence is admissible only if it does not raise a concern of unfair prejudice. The issues in the case can be found by figuring out the plaintiff’s legal cause of action — the law they say the defendant violated. In “A Civil Action,” the principal claims were that the defendants had disposed of chemicals in a way that injured the plaintiffs. As Professor Flatt explained earlier, the classic formulation is a duty owed to the particular plaintiff, a breach of that duty, causation, damages. The plaintiff had to prove that the defendant owed some duty to the plaintiffs — conceptually, not that difficult. It quickly gets tricky around the margins, but that’s the basic claim.
To be found liable, the defendant had to have breached that duty by engaging in an act that exposed the plaintiffs to the chemicals. That exposure must have been the cause of injury, in a way sufficiently related to the risks posed by the behavior to be fair — it must have been the cause in fact and the proximate cause. And then the plaintiff must quantify the damages necessary to compensate for that loss, and where applicable, to deter the defendant from acting that way again in the future.
In Harr’s view, when opposing counsel Jerome Facher promised Jan Schlichtmann that the jury would never hear from the victims, he proceeded to make it so by a series of pretrial motions designed to have the trial track the order of the plaintiff’s burden — duty and breach first in one phase of the trial, followed by subsequent phases on causation and damages. Once that decision was made, the plaintiffs’ most compelling evidence in Harr’s view — their injuries — became irrelevant to the issues at stake in that phase of the trial. The focus switched from sick and injured children and their parents to the actions of the companies and the flow of groundwater. (Note Harr’s choice as a storyteller to have his book start with the sick and injured children and their families, to emotionally invest you in the case and to set the stakes.)
Depending on which side of the case the lawyers represented, a very different opinion emerged about whether the plaintiffs’ injuries should be permitted to color the views of the jury when they decided if there had been dumping of toxic chemicals on the 15 acres owned by the tannery, or whether the groundwater flow under the 15-acre site meant that the chemicals at issue could have reached the city’s drinking water wells. (For a very different view of the case, and of the legal bases for Judge Skinner’s rulings, I recommend reading Jerome Facher’s response, “Considering ‘A Civil Action:’ The View From the Bottomless Pit, Truth, Myth and Irony In ‘A Civil Action,’” 23 Seattle University Law Review 243 (1999).)
One part of law school will be learning the legal rules that apply in particular instances — rules of conduct, ethics, pleading, procedure and evidence, among other things. Another part will be reflecting on whether those rules produce just results. And still another will be reflecting on the nature of justice itself. It is a maxim in life that where you stand very often depends on where you sit. We hope that law school gives you some time and space for figuring out where you stand on the rules, before you know where you will be sitting.