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The Decision to Litigate. The in-class video and lecture identified a number of factors that should be considered when making this decision. They include 1.) Trials are expensive and lengthy. Someone has to pay the costs. 2.) What is the likehood of recovery? 3.) Are the defendants able to satisfy the judgement? 4.) Will a suit impact the relationship between the defendant(s) and 5.) Will harmful publicity or loss of goodwill result?
In the movie, the decision to go to trial was based on the attorneys greed. Though that was not the initial decision, once Schlictmann saw Beatrice Foods and linked it to “Peter Pan, Tropicana, Samsonite, etc”. You could see the dollar signs in his eyes. From that point forward all manpower and resources were allocated to this one case.
None of the plaintiffs in the film appeared to have the financial resources to support a decision to litigate, nor did the firm representing them. Towards the end of the trial, the firm was so heavily in debt over the case they filled out multiple applications for credit cards. They also had second mortgaged their homes, cashed in their “retirement plans, life insurance plans, gone.” The firm had completely overextended themselves in the process of trying to generate evidence to prove their case. The lack of evidence, money as well as the tremendous resources of the defendants should all have been considerations that would have steered them from a trial.
Most important of all, the attorney should have been focused on the goal of the Plaintiffs in determining whether or not to litigate, which in the movie was completely overlooked. They did not want punitive damages as a result of their losses. What they wanted was for the responsible party to take ownership of their actions and apologize to them. This was clearly stated to Jan Schlictmann in his initial meeting with them. Furthermore, they restated their interest at the time that the attorneys informed the families that they would each receive $375, 000 as part of the settlement from W.R. Grace.
Strategy in the Adversary System. One of the strategies employed by lawyers in a trial to achieve a favorable verdict is to persuade the trier of facts that the facts presented by the other side are untrue, improvable or not credible. In the movie, both defense attorneyss attacked the credibility of the plaintiffs attorney, Jan Schlictmann. The first attack on Schlichmanns credibility was when a motion to dismiss the case was heard. Mr. Cheeseman, The attorney representing W.R. Grace tells the Judge that Schlichtman “prepared he complaint so inexpertly”. Also, during the trial, Mr. Facher made objections repeatedly while Schlictmann was questioning witnesses. In the judges chamber, Schlichtman complains, “18 yesterday and 20 times today and they are not even his witnesses!”
The Discovery Process- As discussed in class, the purpose of the discovery process is to eliminate the mystery of the case by bringing forth the facts. Depositions are one avenue of discovery. During a deposition, attorneys representing both sides of the case have the opportunity to orally interview potential witnesses. Those being deposed are under oath. Their statements are sworn and documented by a court reporter to serve as a matter of court record.
During the initials depositions several of the tannery employees and the owner lied about