1

Schlichtmann makes his opening remarks. He outlines the plight and heartbreak of the Woburn families, and accuses Beatrice and Grace of heartlessly murdering their children. His speech rattles Jacobs and Mary Allen. Jacobs feels that he could practically see the moment when the jurors’ minds closed against his clients.

A lawyer named Michael Keating gives the opening statement for Grace. His statement is brief. He promises to prove that the amounts of dumped chemicals were too small to cause harm, and that TCE has a tenuous link to leukemia at best.

Facher speaks for over ninety minutes, although his remarks are nearly identical in substance to Keating’s. He is not a skilled orator and it is not his best performance. The jury is noticeably restless by the end of it.

2

Schlichtmann believes he will need no more than four weeks to complete this first piece of the trial, which is known as the “waterworks phase,” in which he will attempt to prove that Grace and Beatrice contaminated the groundwater, which then reached the wells by the late 1960s. He will rely primarily on two expert witnesses. The first is a geologist who will explain the proliferation of TCE and how it has occurred. The second expert witness is a professor with expertise in the behavior of the flow of groundwater. He will demonstrate how the water from the aquifer made its way into wells G and H.

The geologist’s name is John Drobinski. The night before his testimony, Schlichtman preps with him. Over the following three days, Schlichtmann intends for Drobinski’s testimony to prove that the Beatrice property adjacent to the tannery had been contaminated for over two decades.

Drobinski’s testimony takes much longer, because Facher objects to nearly everything that is introduced as evidence. Facher shows particular vitriol for enlarged photos of the sites, claiming that the enlargement process has distorted the images to the point of being fakes. The jurors are bored and the size of the crowd dwindles drastically.

In the third week, Facher cross-examines Drobinski. Facher claims he has found an exaggeration in Drobinski’s deposition and introduces it now. Drobinski had claimed to receive a master’s degree in geology in 1976, but Facher has learned that it was actually in 1979. Drobinski retorts that his thesis committee and the geology department had told him that he had his degree in 1976. Ultimately, Schlichtmann believes that this won’t matter to the jurors. Drobinski does have the degrees that meet the qualifications of an expert witness. He is more concerned that Facher’s interruptions were so relentless that the jury may have lost track of Drobinski’s data, since it was presented in such a fractured manner.

3

Schlichtmann calls several Woburn witnesses who have reported seeing huge piles of debris and many barrels on the Beatrice land between the 1950s and 1970s. One man testifies that he had seen men dumping wheelbarrows of sludge down the side of a hill into a ditch filled with water. All of the witnesses describe terrible odors and the constant movement of flatbed trucks through the area.

On April 19, the owner of the tannery, Riley, takes the stand. Schlichtmann has been eagerly awaiting this, hoping to make the volatile man lose his temper and catch him in a lie. But Riley has been well prepared and is courteous and calm. He denies all of the charges. When Schlichtmann produces the document by A.C. Bolde, which claimed that Riley had said he owned the land and could do whatever he wanted with it, including allowing the waste to remain, Riley denies ever having met Bolde. Schlichtmann makes no headway and Skinner eventually grows impatient with his repetitive questioning.

That night, Schlichtmann consults with his team. No one believes that the questioning went well. Tom Kiley stands. He has been at the trial the entire time and felt he could have done a better job than Schlichtmann in some areas. He demands that Schlichtmann toughen up and manhandle Riley on the stand. Few lawyers ever get as much evidence as Schlichtmann has against Riley, and Kiley says that if he doesn’t get mad and use it, he’ll deserve whatever happens. Conway also advises Schlichtmann to get angry.

But if there is any improvement the next day, it is mild. Riley remains calm in the face of Schlichtmann’s onslaught of questioning. Facher is pleased with Riley’s performance, but the next morning the first flaw in Riley’s performance appears. Facher is questioning him and asks if, to Riley’s knowledge, there has ever been any sludge dumped on the fifteen acres. It is almost as if Riley forgets that Facher is his lawyer. He petulantly shouts that he already told him no. The fury in his response shocks Facher, who could never have seen it coming, during what is meant to be a friendly encounter.

Schlichtmann questions him as a follow up. He gets Riley to state that there are no tannery records prior to 1979. When Schlichtmann asks when Riley destroyed the records, Riley begins shouting about not using TCE. Skinner tells him to be quiet and reminds him that he must only answer the question he is asked.

4

As the trial drags on, the Woburn families settle back into their routine. Most of them follow along on the news, even though complete transcripts of each day’s proceedings are provided. Richard Toomey is the only one who continues to read the transcripts past the fourth week.

Schlichtmann begins his case against W.R. Grace. Nesson feels that it’s going very well. The trial proceeds much more quickly during this period, largely because Facher is not objecting because Grace is not his client. Schlichtmann’s questioning of Tom Barbas goes well, as he is able to continually trap Barbas with answers from his deposition that contradict the answers he is giving in court.

However, despite his relatively smooth work in court, Schlichtmann’s firm has completely run out of money. They barely have enough to keep the coffee pot filled. Schlichtmann wants to avoid going back to the banker, Briggs, unless it becomes absolutely necessary.

5

Schlichtmann has one final witness in this phase of the trial: George F. Pinder, an expert in hydrology and groundwater movement. Pinder performs well while being questioned by Schlichtmann. By the end of his first day of testimony, Pinder has given his opinion that Beatrice and Grace are responsible for the contamination of Wells G and H. But the next morning, he makes a small mistake. He gives a different travel time for the TCE moving through groundwater than he had in a previous statement, because he forgot to factor porosity into his calculations. The next day, Schlichtmann has him correct the mistake, and it appears no harm has been done. But Facher concludes the final seven minutes of the day with a brutal line of questioning, openly mocking Pinder for making a mathematical mistake in a case that he has been involved in for more than a year. The next day is no better. Facher’s questions are so clever and intimidating that soon Pinder believes there are traps in them all and finds himself unable to answer even simple questions confidently.

Schlichtmann doesn’t think it will matter to the jury, and he doesn’t blame Pinder for being nervous.

6

The jurors give Skinner a gift. He struggles to open the door that leads to the chambers, so they have a doorstop made for him. This disturbs Schlichtmann, who worries that they might give undue weight to Skinner’s reactions during the trial.

Meanwhile, Phillips settles a case that will bring in 40% of a settlement of nearly $600,000. The money will be gone instantly, used to pay outstanding bills for the Woburn case.

7

On June 4, Facher begins his defense of Beatrice. He questions Thomas Mernin, the Woburn City engineer. Mernin had lived next to the Toomey’s for thirty years. He had not shut down the wells when he could have, which Facher intends to use as proof that if a city engineer hadn’t been worried about the water, he must have had good reason. Mernin had even recommended a third well be built in the same area. However, Mernin winds up looking incompetent, mixing up dates, and acting dazed and tired, even before being cross-examined by Schlichtmann. One month later it is revealed that Mernin has been diagnosed with chronic myelogenous leukemia, that same disease that had killed Roland Gamache, who had died in the sixth week of the trial. Schlichtmann cannot use Mernin’s illness as evidence, but he is determined to find a way to bring it up. Mernin would die only a few months later.

Schlichtmann cross-examines a soil chemist named Olin Braids, another of Facher’s expert witnesses.

8

Briggs calls Gordon and tells him that he can never overdraft on an account again. The extent of the firm’s financial difficulties is presented. There is no new income on the horizon. When Gordon overdrafts once more, a month after promising not to, Briggs cuts off their credit. The Bank of Boston will no longer loan them any money.

9

The watershed phase of the trial is ending. The only thing remaining is for Keating to call his witnesses for Grace. Keating’s strategy is not so much to defend Grace as to shift the blame to other sources. He suggests that that polluted river contaminated the wells, not Grace’s groundwater. The strategy is sound, and his experts are formidable. His final witness is a groundwater expert named John Guswa. Guswa is an expert in glacial morphology. He gives an explanation that goes back to an ice age that produced high amounts of dense ground called moraine. Groundwater cannot penetrate moraine at the rate that would be necessary for the contaminants from Grace to have reached the wells by the time posited by Schlichtmann.

Nesson leaves abruptly during Guswa’s testimony and is still missing the next morning. During Schlichtmann’s cross-examination, he gets Guswa to admit that water from the Beatrice site could flow beneath the river. This implicates Beatrice, whose witnesses had posited that the river itself would prove a barrier that would divert the flow of groundwater from the plant to the wells.

In the interim, Nesson has gone to the Harvard Law School Faculty Library. He knew there was a simple way to disprove Guswa’s moraine theory, he just had to find it. He finds an imbalance in Guswa’s equations. He returns to the firm and tells Schlichtmann that he knows how to demolish Guswa’s claims.

The next afternoon, Schlichtmann asks Guswa to calculate according to Nesson’s math. Schlichtmann shows Guswa to be in error, because if he was correct in his estimates, the Grace plant would currently be ten feet underwater. The following day, Guswa spends most of the trial at a chalkboard, performing calculations. Schlichtmann gets him to admit that the direction of the contaminants is probably the same direction as Beatrice and Grace.

10

On July 1, the lawyers, the judge, and the jurors get on a bus to visit Woburn. They will visit the places they’ve heard so much about, beginning with a tour of the Grace plant, given by Cheeseman. Next, they go to the Aberjona marsh to examine what is left of Wells G and H. Woburn’s mayor had ordered that the wellhouses be demolished the previous March. When he sees how close the wells are to the city—only a few hundred feet away—one juror is heard to say that he hadn’t pictured just how near the contaminants actually were.

11

Before the jurors are sequestered, the judge gives them the rest of the week off. A difficulty previously established comes back into play. After Pinder’s final day on the stand, the judge ruled on a motion that undermines Schlichtmann’s case against Beatrice. For starters, in the eyes of the jury, Beatrice cannot be viewed as being liable for anything prior to 1968. This means that Skinner is effectively telling the jury that Riley could not have known that wastes on his land would contaminate the wells. It also excludes the testimonies of witnesses who saw drums of chemicals prior to 1968. Schlichtmann cannot follow Skinner’s logic in the ruling. These sorts of jury strictures, when imposed by a judge, are called directed rulings.

Skinner asks the lawyers to prepare a draft of questions they feel the jury must answer in order to render a verdict. The arguments over the questions last for two days. The questions, given their technical nature, are almost impossible to understand, even for Skinner. But the judge believes that if the jurors truly cannot answer these questions, then it may suggest that the case is too complex to try in court to begin with. Nesson believes that the real blame lies with the fact that the judge decided to split the trial into two parts. If they had been able to present the case as a single, uninterrupted sequence, the symptoms of the victims would have lent credence to the scientific data concerning contamination.

12

July 14. It is the day of closing arguments for the first phase of the trial. Facher goes first and gives a predictable, unmemorable summation. Schlichtmann does not do much better. Against Nesson’s advice, Schlichtmann wrote and then memorized his speech. Facher objects throughout, even though objections during closing arguments are rare. This throws Schlichtmann out of rhythm. When he finishes, no one is sure, based on the closing presentations, if the jury is swayed in either direction.