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Professor Charles Nesson’s Thoughts on the Legal Process
By Kristina Carey
Harvard Law Professor Charles Nesson addressed a sundrenched amphitheater full of students on Friday, September 4, discussing his role in the Woburn case described in Jonathan Harr’s A Civil Action. Identified in A Civil Action as “Billion Dollar Charlie,” Professor Nesson was called into the Woburn case to help with the volumes of circumstantial scientific evidence gathered by the plaintiff’s counsel. More than focusing on the details of the trial, Professor Nesson spoke to how the legal process ultimately failed the citizens in the Woburn case.
Nesson said that he had come into the case believing that the “cause was extraordinary” and that “people had been deeply wronged.” He was also attracted to the issues in the case as a test of whether one “could prove the scientific fact of pollution” based on the copious quantity of circumstantial scientific evidence. Professor Nesson said that he assumed the case would unfold in a typical manner, but that he was quickly disabused of that notion.
In describing the Woburn case, Professor Nesson identified three key point where he felt the case had been lost. The first was at Judge Skinner’s decision to bifurcate the case into two dependent questions: are the defendants responsible for the pollution, and if so do the chemical pollutants cause the illnesses claimed by the plaintiffs? In so doing, Nesson stated that the “first part of the case was bloodless,” boring the judge and jury into a cranky stupor. “It was like watching grass grow.”
The second key phase at which Professor Nesson felt that the case suffered a critical wound was when the plaintiff’s attorneys chose not to settle with Beatrice. “We should have paid Beatrice to stay out of the case,” said Nesson. “The case against W.R. Grace was much stronger.”
Lastly, Professor Nesson thought that in the plaintiffs’ summation Schlichtmann should have used his time to really speak to the jurors, giving them direction as to how to answer the very difficult questions posed to them by the judge. In making a generalized and lofty appeal for fairness, the plaintiffs’ team lost an opportunity to make a direct connection with the jurors.
It seems clear from hearing Professor Nesson that this case continues to profoundly influence his life. In summing up his experience, Nesson describes “learning a lot of lessons fresh that I thought that I had learned before.” Nesson reminded the audience that “law is about people” and discussed how the different personalities in this case ended up influencing its outcome, citing the antagonism of Judge Skinner as a byproduct of how long and unwieldy the case was allowed to become. “The trial became a ‘tar baby’ for Judge Skinner,” Nesson said. “There wasn’t good editing of what was going on in the court room.” “Schlichtmann was the enemy; anything he did, Skinner was going to undo.”
Nesson seemed to continue to feel anger at the methods of the defendants’ counsel and at the way in which the process was used to prevent the victims from telling their story in court. After saying that he now took “a much more cynical approach to how law actually works,” Professor Nesson spoke at some length about how a lawyer deals with the bitter disappointment of losing a case. He described feeling comforted by taking a proactive look at how the case might have been won rather than sinking into the despair of thinking “well, I just didn’t have it in me.”
Professor Nesson answered a number of questions from the audience about the case. When asked if the case could have been won had it waited for the science to catch up with it, Nesson replied that “the law can mobilize science” and made the case that one of society’s best checks on industry’s occasionally heedless use of technologies is a legal system that enforces rules that protect the health and safety of citizens. For the citizens of Woburn though, Professor Nesson clearly feels that “the process didn’t work.”