Q&A: Woburn and Beyond

An interview with Jan R. Schlichtmann, best known as the plaintiff's lawyer in Jonathan Harr's best-seller A Civil Action, the story of a toxic tort case over the contamination of the Woburn City (Mass.) water supply. Schlichtmann continues to work on toxic tort cases, including high-profile cases in Toms River, NJ and Libby, MT. He is currently of counsel to Lieff, Cabraser, Heimann & Bernstein, a San Francisco-based law firm that specializes in class-actions and mass torts. Schlichtmann was interviewed by Steven Keeva. He (Schlichtmann, that is, not Keeva) looks very little like John Travolta, who played him in the movie.

Q: I understand your thinking about the nature of conflict and the legal profession's response to it has evolved since the events depicted in A Civil Action.

Schlichtmann: Yes. I've come to see a continuum between the collaborative and the combative modes of dealing with conflict. On the one hand, litigation is always there as a last resort; that is, you can always engage in armed combat, go out onto the field of battle until somebody sues for peace.

On the other end of the spectrum, there's the purely collaborative mode, where if you--the lawyers--can't resolve things, then the parties have to find other people to engage in combat for them. I try to bring these together, to do both. We tend to think that they're two different worlds. It's hard to wage war and wage peace at the same time, but it's necessary. Conflict can quickly become the reason to have more conflict, and that's what you have to guard against.

When I take a case, if we can't work it out, we can go into battle, but we do it with the option of going back to try to resolve it. I think keeping the collaborative option alive is the only sane way to protect your client's interests. And I see that the older lawyers, those who haven't become burned out and cynical, see it this way too.

Q: So you think that a lot of opportunities are missed because people don't leave that collaborative door open?

Schlichtmann: Absolutely. Just look at the Microsoft case as an example. Opportunities to resolve it kept coming up. Now, you may have just been pulling your hair out waiting for the parties to take advantage of those opportunities, but the opportunities were there. Instead, they just continued the posturing. I would have tried, even in the midst of combat, to find a way back to a collaborative approach, where you're still operating with respect for the other side, you share information, and you stop seeking tactical advantage.

It would be the best use of the rules of civil procedure. But what happens is lawyers use them not to enlighten one another, but as weapons to gain that tactical advantage. I think that is endemic to any conflict-based system.

All the Marquis of Queensbury's rules don't change the fact that you've got two pugilists pounding at each other. Just because you're in law, it doesn't make it any less damaging. It's just that here the bleeding is internal.

Q: Speaking of the Marquis, how do you get around the other side's fear of letting down their guard?

Schlichtmann: What I've found is that when you help the other side learn by exchanging information, it increases the likelihood that they'll reciprocate. I see it as one of the general laws of human physics.

I think we have to work hard not to not succumb to a certain kind of diseased thinking that is common in the profession. We have to work to help both parties stay healthy. If we're communicating through litigation, it's rife with opportunities for conflict and payback. It's the same dynamic that keeps tribal conflict alive. There are opportunities every day to return fire, and it takes a tremendous act of will to go outside of that dynamic and encourage different behavior. But if you do, most of the time people will respond in kind.

Q: Did much of what you learned about the nature of conflict and how to deal with it come from the Woburn experience?

Woburn forced me to confront these things. I was haunted by Woburn. It ended after 9 years, but the memories affected me for a long time after that. Not until I embraced the experience and understood that it had something to teach me, did I come to peace with it. Of course it didn't just happen in a straight line; it was up and down.

Woburn caused me to be a victim; it stripped me naked in so many ways -- financially, emotionally, and spiritually. I had to keep relearning things. It just knocked me off my path, took my financial resources, sapped my emotional resources. The sweet comforts of life were taken away from me. With them gone, I had to confront the hard rock of reality. If you don't do that, you're going to fall.

I've been climbing on that hard rock since, taking my comforts where I can -- but realizing that the comfort comes from clinging to the hard rock of reality. Often we distance ourselves from that which will save us. Woburn taught me that it's important to stay rooted, and that you've got to work to do that. It's a balancing act. I have come to realize how natural-world metaphors have so much to teach us.

As I'm talking to you, I'm looking out my window at a tree that is rooted on a cliff overlooking the ocean. It's an image I was taken by when I moved here: it has made a difference in my life. The image has helped me begin to confront the Woburn experience. We are all on a cliff and those who stay rooted in the rock of reality stay tethered to the world. And every day is a relearning of that.

Q: You must have learned a great deal about how conflict can imperil this sense of rootedness.

Schlichtmann: I look at conflict and have a healthy sense of how it can tear us away from this world. It brutalizes you, desensitizes you; you engage in behavior where you do more action and less thinking; it leads to severing relationships with people and with the earth. You end up doing things that can send you over the edge. I now have a much greater appreciation of what conflict can do and the dangers of it.

Q: What else did Woburn mean to you? Neither the movie nor the book really had a chance to explore this.

Schlichtmann: Well, Woburn has defined me, is part of me, and it always will be for good or ill. If there's a single overarching lesson I learned from Woburn it's that, on this planet, all resources are limited. That goes for time, for money, for all our treasures. And unless you understand and appreciate that and accept it as a fundamental principle of life, you will end up wasting the resources that God has given us. And that's truly a waste. We must use our resources in a way that gets us to a better place.

Litigation is a conflict-based system that wastes time and resources. It's a take-off point for removing a problem from its basis in reality and creating a false reality. I see collaborative approaches as reality-based practices. Conflict-based approaches are based in illusion. In conflict it's hard, if not impossible, to deal with reality. What you're doing is trying to impose something on reality -- your will on someone else: "You will pay more damages," "You will give me the information," whatever. You need delusion to do that. It's antithetical to problem solving.

In litigation, you declare your vision and try to impose it on the other side, leveraging the court system to do it. All this will-imposing inspires all this resistance. You're engaging in delusional thinking. You have to think you're right; if you think they have the truth, you have to ask them to share it. Then you're back to collaboration.

What you find with lawyers is that, almost without exception, the older lawyers, those who have been around a while, tend to have an understanding and an appreciation of the limited nature of our resources and want to solve problems with the least amount of conflict. These are the ones we turn to, to resolve the seemingly intractable conflicts. These guys will tell a client, "It could take ten years if we go that route. Ten years: Do you know what ten years means? In ten years I may be in my dotage." Unfortunately, that life experience has not translated into big-firm law practice.

It's quite trying to take that lesson and infuse it into the legal system. It doesn't want to hear it; it's too caught up in the conflict model. Many people see the earth as an unlimited resource; that they can take all the bounty and do what they want with it without any concern for life. That is forcing us to realize how limited our resources are.