*** Question: Basing your discussion on the movie, A Civil Action, discuss the Pros and Cons of using Private Tort Litigation to address a problem, as opposed to Administrative Agencies, and why.***
The character of Jan Schlichtmann, played by John Travolta, was the entity representing Private Tort Litigation. The EPA, which is only in the movie for a brief moment at the close of the film, represents the Administrative Agency. The villain is played by mega-corporations that have spent years destroying the town’s water supply by injecting contaminants into the ground. This is the story of a small private law firm attempting to duplicate the epic David versus Goliath battle by seeking justice from the evil doers that have desecrated the land and taken the lives of the populations innocent children…it proved unsuccessful. Although history has proven that the underdog can and often times does win, there are certain traps in to which such a “David” must not fall.
In analyzing this movie for the Pros and Cons between Administrative Agencies and Private Tort Litigating, the role of Schlichtmann is perhaps not the best argument for Private Tort Litigators. Many mistakes were made that even Schlichtmann knew better than to fall for. But sometimes you can’t help breaking your own rules. Had he stuck to his guns and not let the ego get in his way, he would have stood a much better chance against the Behemoth Corporation he was attacking.
Some may argue that he was blinded by the big payoff he would receive as ‘commission’ and that being greedy was his ultimate demise, but I dissent from those who have yet to remove the blinders and see the possibility that the struggle was for much more than a fat wallet. Greed may have been his downfall, but perhaps it was lust or even vanity…well, whatever you decide to label it, we could all agree upon that this downfall came because of his passion, his determination, or even his self righteous sense of being the victor in the pursuit of his goal – justice.
The way I see it is that his downfall, caused by his very own rule that he broke, was the rule to not feel the client’s pain. Once he did that, he may as well have given up the fight. Because once you are feeling what the client is feeling, you lose sight of trying to recapture what they lost and begin to focus on making the opponent suffer for the wrong they have committed.
It is difficult for the observer to see beyond the monetary value at stake because the dramatic pull of the film tricks you into believing that it was money that drove Schlichtmann. But it was not. To defend him, it must be made obvious that he works on contingency. Further, it must be clear that such a large case involving the lives of past, present, and even future citizens of the town can get to be very costly – even more so when the lawyer is footing the bill and only receives compensation IF he wins. Which is exactly why Schlichtmann did not want to take on the case in the beginning. Sure he could just take the case and sue someone, and if he wins get some money, but all of that would go to reimburse him for his performance and the innocent people who were harmed would be left with nothing except contaminated drinking water and fresh graves.
The turning point that made him take the case was when he began to understand the struggle of the victims of the town; and that is when he was able to determine that there was someone who had been polluting the water supply. Not only was there an actual problem, there was now someone who would actually be able to apologize and fix the problem they created in the first place. The entire time throughout the case the motivation wasn’t to make extra money, it was to right the injustice that the victims had suffered. It was only when Schlichtmann broke his own rule and felt the pain of the people that he went off course. When he felt that pain, he wanted to make whoever was responsible suffer just like the town’s people had, and the best way to do that to the corporations responsible was to hit them where it hurt…their bank account.
If Schlichtmann would have stayed on course and not investing his soul into the case he would have likely made some better decisions in how to properly attack the corporations and could have at the very least obtained a much more favorable settlement. When a battle such as this comes up to bat, everyone is swinging for the fences. It just seems as though Schlichtmann tried to hit it with all his might and accidentally closed his eyes in mid-swing. This ended up costing him dearly because it backed him into the corner where a small and underfunded firm would not want to be when competing with a well stocked corporate bank account.
The lesson learned from this movie was beyond that of not feeling the pain of the clients, it was knowing where your limits are, and staying within your confines. A small firm practicing private tort litigation could have obtained a much better result if they would have not tried to make the invincible corporation feel pain. All their fighting only ‘made the hulk angry’ and hulk smashed the little guy. It is unfortunate that a victim cannot receive justice simply because they are the financially weaker party that can’t go the distance…but maybe it doesn’t have to always be that way.
When the Environmental Protection Agency was brought to the case on appeal, it showed the true power of good fighting evil. It was no fairer for a mouse to challenge a snake, than for Schlichtmann to challenge a Corporate Bank account. In the right circumstances he might have won, but why not get help from an adversary who does have an interest in the battle. The EPA was proved to go the distance and was prepared to do battle. Just as in boxing there are weight classes and they stay within those confines, so too are there battles fought in the courtroom. I’m not saying that Private Tort Litigators are not in the same weight class as the Corporations; rather what I am saying is that somewhere throughout the process Schlichtmann forgot that he was a new fighter in the weight class and let his judgment get clouded. It takes more than just a good lawyer to go the distance in such a fight, it also requires capital.
On the whole, in certain circumstances such as these large drawn out battles, sometimes it is better for Administrative Agencies to foot the bill because they have better resources and are more suited for the long haul. In other instances where the battle is more like a drag race than a marathon, an Agency might just prolong the suffering. This movie was a good example of why it pays to use an Administrative Agency, but there are other situations that may call for the need of the Private Tort Litigation.