Civil Action

This essay has a total of 1792 words and 8 pages.

Civil Action

A CIVIL ACTION

The legal system is an essential element in the successful operation of this country. It
is a system that is utilized every day, by every type of person, from the average
blue-collar worker to the average Wall Street broker. There is a multitude of ways that
the legal system is put to use. One such way is the class action lawsuit. A Civil Action,
by Jonathan Harr, uses the account of a single case, Anne Anderson, et al., v. W.R. Grace
& Co., et al, to illustrate the power and importance of class action lawsuits in the civil
justice system.

The purpose of class action lawsuits is to give the common man the ability to take on the
largest corporate or private entities, who can afford the very best legal services, and
have a chance of redressing the wrong done by these entities (Clark, sec. 1). Without
class action lawsuits, ordinary citizens acting individually would not have the means to
challenge corporate and governmental wrongdoers.

A Civil Action provides an in depth account of the life of one class action suit. It
explores the role of the lawyer in litigating situations, focusing on the critical factor
of proving causality. It brings to light numerous pitfalls encountered by both the
prosecution and defense. In addition to exposing the potential pitfalls that can occur in
a class action lawsuit, A Civil Action also touches on the motivation behind these cases.
A definite motivation must exist for all persons involved in a class action lawsuit, since
the uncertainty, stress, and pitfalls that accompany this form of civil action are
tremendous.

A Civil Action did not attempt to sugarcoat the process of trying a case such as the
Woburn case. The complication were numerous and often hard to overcome. For the
plaintiffs, the biggest hurdle faced was proving causality. Nearly all other obstacles
Schlichtmann and his staff encountered were directly related to the attempt to prove
causality.

In a civil case, as opposed to a criminal case, winning is determined by the preponderance
of evidence. In other words, the majority of the evidence must suggest finding for the
plaintiff. Of course, the burden of proof remains on the plaintiffs, but as Professor
Nesson explained in the book, the plaintiffs must prove only "that it is ‘more than
likely true than not' - a standard often taken to mean by 51 percent or better" (Harr
236). Although this is easier to achieve than proving beyond a reasonable doubt, it still
has its difficulties. The harm must be linked to the behavior of the defendant, a factor
often hard to prove.

The attempt to link the harm to the behavior of the defendant produced its share of
successes and failures for the Schlichtmann team. Not only did the plaintiffs have to
prove that the corporations contaminated the water, but they also had to show that the
contamination caused the leukemia and the other health problems. To do this they enlisted
the help and expertise of numerous doctors and specialists. Naturally the defending side
recruited their own set of experts. As in any case, each side is going to have an expert
who will refute the testimony of the other side's expert. This is a normal part of arguing
a case, but can cause confusion and complication on the part of the jurors.

A lesser-anticipated pitfall associated with expert witnesses, is the possibility of them
making a mistake. Especially in a case such as Woburn, where both sides have a slew of
expert testimony, lawyers such as Schlichtmann aren't able to catch or prevent every
mistake. Even if eventually caught and corrected, one mistake can prove to be very
damaging. In A Civil Action, George Pinder, Schlichtmann's expert in hydrology and
groundwater movement, made a minor calculating mistake. Although minor, "Schlichtmann knew
that Facher and Keating would not miss this mistake, and that they would use it on
cross-examination to attack Pinder's credibility" (Harr 327). An expert witness whose
credibility is questioned can no longer be seen as an expert witness. For this reason,
even minor mistakes by witnesses are considered to be serious pitfalls.

Proving causality becomes even more difficult if the prosecution is faced with dishonest
witnesses. In the Woburn case, extensive evidence supported the plaintiff's theory that
Riley Tannery had polluted the land with TCE. Despite this comprehensive evidence, John J.
Riley adamantly denied any wrongdoing. Schlichtmann was certain that Riley was lying, but
he had no obvious way to prove that. "He hadn't been able to find any tannery witnesses
who could testify to using TCE. And Riley had testified under oath that there were no
records of the chemicals the tanner had used before 1979" (Harr 193). A dishonest witness
such as Riley can be harmful to a case, since often there is no solid way to prove a
person is lying. Unfortunately for Schlichtmann the trial had already ended by the time
solid proof of Riley's dishonesty finally surfaced.

Despite the numerous pitfalls that the prosecution encountered, perhaps none was more
daunting and ever present as the lack of money. Schlichtmann and his team took the Woburn
class action lawsuit knowing that it would require a significant amount of money, but none
of them had anticipated spending as much as they did. The prosecution spent copious
amounts of money in order to obtain as much proof of causation as possible. There was no
limit to what they would spend for medical testing, environmental testing, expert analysis
and testimony. In addition, they were inundated with bills for everything from daily
transcripts to dry cleaning. Although much of the money was well spent, much of it was
also spent frivolously. Fine wine and suites at the Ritz Carlton were among the
unnecessary indulgences that contributed to the immense debt. In the end the expenses for
the case totaled $2.6 million. With proper budgeting and frugality that figure could have
been lowered considerably, but this was something Schlichtmann and his team realized too
late.

Because of the lack of money on the part of the prosecution, an additional hurdle they
faced was postponement of the trial date. Even though extra time meant more preparation,
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