In the Shadow of Woburn

The hearing is not going well for Jan Schlichtmann. He’s back in Woburn, the town that scarred him, drove him to madness, altered him forever, and then, still later, made him famous. Woburn has changed a great deal in the 23 years since the jury reached its decision in Anne Anderson v. W. R. Grace & Co., the case chronicled in A Civil Action, the best-selling book by Jonathan Harr. The tannery and chemical plant that poisoned the water are gone now, and the Middlesex County Courthouse itself moved to a commercial zone of office suites and chain restaurants right off the freeway. The cubicle farms are intended to show the progress of this blue-collar town, but they also lessen the gravitas of the court’s proceedings.

Up on the seventh floor, in a room packed with more reporters than plaintiffs, Schlichtmann stands before the judge, just as transformed as Woburn. Gone are the Hermès silk ties, the Bally shoes, the suits that Schlichtmann would travel to New York to have tailored. In their place are a blue shirt and red tie (the only tie his friends know him to own), a navy blazer poorly matched with gray slacks, and black shoes that, from the gallery, look to be some hybrid version of tennis sneakers.

Schlichtmann is no longer the trial king, either, and hasn’t been since the demoralizing Anderson verdict. He looks to settle cases now, which is why he’s here today, seeking injunctive relief: a court order for a party to stop acting in a certain manner. In this case, that party is the Massachusetts Turnpike Authority, which Schlichtmann sued this spring. He contends that the Turnpike Authority is unfairly burdening commuters who travel into Boston on I-90, and through the Sumner and Ted Williams tunnels. More than half the toll fees these commuters pay are going not to the roads and tunnels they travel every day, but to the Big Dig debt, now standing at $15 billion. Meanwhile, commuters traveling on I-93, through the center of the Big Dig, pay nothing, because I-93 isn’t a toll road.

The case involves the sorts of public-policy arcana that would, in lesser hands, make the pages of the complaints read so dry as to become brittle. But under Schlichtmann’s pen, the case is epic. What we have here is a modern-day retelling of why the patriots of centuries ago (and right here in Boston, mind you!) fought back against the English: taxation without representation! And Schlichtmann will battle accordingly.

He’s on to something, fighting along such broad lines. If he wins or, more probably, settles to his liking, the case will rewrite not only legislation in Massachusetts—which in 1997 passed the law that set up the Big Dig repayment plan—but also legislation throughout the country. In New York, for instance, two-thirds of the revenue from the city’s toll bridges and tunnels goes to support its subway system. If Schlichtmann prevails in Massachusetts, he’ll have grounds, in theory, to take his equitable-toll-road argument anywhere else.

And he’ll bring the suits his way. Woburn taught Schlichtmann many things. Chief among them: The practice of law is "diseased," he says, crowded with litigators out to destroy each other first, and resolve their differences later. In the two decades since Anderson, Schlichtmann developed and then refined—some might say perfected—a technique that keeps his cases largely out of the legal system: He establishes a public trust through which the assumed plaintiffs air their grievances and the facts they’ve uncovered (where Schlichtmann comes in) directly with the assumed defendants. The idea is to mediate before the sides litigate, and when it’s done well, Schlichtmann turns to the court only to approve the settlement.

That’s why today is important. If Superior Judge Herman J. Smith orders the Turnpike Authority to stop siphoning toll revenues away from toll roads, Schlichtmann can force the agency to the negotiating table, a place it’s heretofore refused to sit, and have its lawyers mediate with him and the co-counsel from the case’s trust, the Massachusetts Turnpike Toll Equity Trust. Some 2,500 people have joined the trust since Schlichtmann filed suit in May; it is seeking $450 million in damages.

That’s a lot of money for a lawsuit in which no one died. And to hear Schlichtmann’s critics—who are as numerous as they are vociferous—tell it, the settlement he wants in this case is proof that he’s simply another greedy trial lawyer. No, worse, because Schlichtmann does not bring his cases to trial. Greed, say the critics, many of them well-paid lawyers themselves, was the real lesson of Woburn. Indeed, part of the reason this afternoon’s hearing is at times rough for Schlichtmann is because of the Turnpike Authority’s young lawyer, Brian Kaplan, who seems to relish repeating the nasty perceptions of his opposing counsel. Schlichtmann has a choice, Kaplan says. He can argue today that the harm to his clients is irreparable, a violation of the Constitution, which would satisfy the criteria for injunctive relief. But he can’t satisfy those criteria by arguing along constitutional lines and asking for money. Thus, Schlichtmann’s choice: Take the high ground and ignore money,  or get dirty and talk about it a lot. "To put that choice to Jan Schlichtmann," Kaplan says, staring at Judge Smith, "he’d take the money."

Some members of the gallery snort at this, and the judge briefly raises his eyes toward them. At Schlichtmann’s table, you can see the back of his neck redden.

When it’s Schlichtmann’s turn, he stands to address the judge. He is 58 now, tall, with a prominent nose and mustache, his face gaunt enough to look haunted, his frame as thin as when the evening-news cameras first captured it a generation ago. His hair was graying then, and it’s nearly white now, but some things haven’t changed. He is still such a zealous advocate for his cases that he’d rather they be referred to as his "projects." Projects are causes. Cases are what lawyers bill hours for. Projects are the lawsuits Schlichtmann believes in, because through them he can honor his most basic passions: to right wrongs and, even more fundamental, to expose the truth.

In response to Kaplan’s quip, Schlichtmann reads back to the young lawyer, in a voice the next courtroom can hear, parts of a reform bill that the governor has just signed that show, to Schlichtmann, the injustice of the Turnpike Authority’s toll fees. "Even the legislature is in agreement, judge!" he shrieks.
At the end of the hour, having heard enough from both sides, Judge Smith stands to leave. He has decided to enter his ruling at a later date.

Schlichtmann takes the opportunity to go outside and talk to reporters. When asked about the Turnpike Authority’s strategy, he says the agency had showed that, in its view, "[it's] free to rape and pillage the land." This is presumably the first time a quasi-governmental agency charged with collecting change has been accused of making like Attila the Hun. But Schlichtmann doesn’t crack a smile at this. He just stares the reporters down.

Woburn, it seems, changed Schlichtmann in many ways—except the most important one.