In the Shadow of Woburn


That’s the real lesson of Woburn:
Jan Schlichtmann didn’t learn every lesson he should have. His zealotry remains unbound. He will fight for his clients, for their version of the truth—at times to the exclusion of their benefit, if you believe the detractors. He will fight to the exclusion of his benefit, too, of his sanity, if you believe his wife. He may take on more cases these days, and settle more, than he ever did as a young lawyer. He may be greedier or more altruistic than he ever was during Woburn. But Schlichtmann’s focus for each case remains just as narrow, and just as unending. That’s the one lesson he didn’t learn.

Schlichtmann is in a playful mood as he clicks through PDFs of the Turnpike Authority case on his computer. It’s six days after the hearing where he shrieked at the Turnpike’s attorney, and Schlichtmann’s glasses sit low on his nose, a schoolmaster about to impart another lesson.

"Ah, this is great," he says. "They are so upset with this." He smiles and shakes his head. Schlichtmann trolls through the minutiae of Turnpike Authority material until he finds what he wants, internal documents citing "a secret toll equity working group." A May 2008 draft policy paper from the group states that because 72 percent of the agency’s roads are not tolled, drivers on I-90 are distinctly disadvantaged. Exactly what he needs: the Turnpike Authority’s own secret documents making his argument. This document and others like it were the reason he filed the suit this spring, Schlichtmann says, staring at his Mac.

Nevertheless, one week after this jubilant computer presentation, his case suffers a major setback. On that day, Judge Smith enters his ruling, denying Schlichtmann’s motion for injunctive relief. It is a blistering opinion. Smith says that road tolls are fees and not unconstitutional taxes, because the toll payers are choosing to take those roads. If they want to avoid the fees, they can take an alternate route. Smith then indicates how he’ll rule as the case proceeds, saying the plaintiffs’ argument, as presented, has a "relatively low chance of success."

The next afternoon, Schlichtmann answers the phone in a foul mood. "This is not over, not at all," he says. He plans to keep fighting, and already he’s begun. He stayed up all night writing an appeal.

A few weeks later, that appeal is denied. No matter. Jan Schlichtmann vows to fight on.