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Jan Schlichtmann, a recent hire at Lieff, Cabraser, Heimann & Bernstein’s New York office, may need a neutral if he plans to dine at 9th U.S. Circuit Court of Appeals Senior Judge Dorothy Nelson’s home any time soon. Schlichtmann, billed as the linchpin of a planned panel discussion on the movie “A Civil Action,” was a no-show at the annual 9th Circuit Judicial Conference held last week in Sun Valley, Idaho. Schlichtmann was the mercurial plaintiffs’ attorney portrayed by John Travolta in the film. In attendance at the conference were co-counsel Kevin Conway and defense counsel William Cheeseman and Jerome Facher, who was portrayed by Robert Duvall. “I think next time I’ll invite John Travolta instead of Jan Schlichtmann,” cracked Nelson, serving as emcee to a lively discussion that showed the old trial wounds haven’t exactly healed. The case, Anderson v. W.R. Grace, was a years-long environmental suit over a cancer cluster in Woburn, Mass., that ended up nowhere. After a decade of legal wrangling, the plaintiffs’ lawyers walked away with costs and fees, the plaintiffs won next to nothing, and the defendants battled for years before coughing up what had been offered in the early stages of the case. So Oakland, Calif.-based U.S. Magistrate Judge Wayne Brazil, perhaps the Northern District of California’s staunchest advocate for alternative dispute resolution, moderated the panel of judges, lawyers and neutrals, asking whether ADR would have prevented some of the problems that arose during the case. “There is no question in my mind that had we had a third-party neutral, we would have settled that case,” Conway said. Conway said the plaintiffs’ lawyers were stunned that the defense walked out of attempts to settle the case at a Four Seasons Hotel. In that infamous sequence, Duvall listened to the plaintiffs’ request for $320 million, shoved a roll in his coat pocket and left the room. The panelists called it one of the more accurate scenes in the movie. Facher — who blithely pointed out he took a croissant, not a roll — said, “This case is probably not one that would have been resolved.” He pointed to the high level of publicity and plaintiffs who, he said, were not informed of the “consequences of the judicial system” and had unrealistic demands, such as personal apologies from company executives. Facher was also chafed that plaintiffs’ lawyers held the meeting at a posh hotel (“We wanted them to think money,” Conway had said), and would have been fine talking over a cup of coffee in a greasy spoon. “The idea that it takes money to produce money is foolish,” Facher said. “There just was no room for sitting around and talking with Jan … about these monstrous figures.” Perhaps a neutral was needed to figure out whether a neutral would have helped the case. Panelists not involved in the suit, however, were more optimistic. “I’d like to try it now, as a matter of fact,” said Chief Judge Michael Hogan of the District of Oregon. The panel also revealed several interesting anecdotes about the case. Cheeseman said the defense had no idea Schlichtmann was broke. “Jan was playing on a bluff in my view, and we called it and, in the end, he didn’t have the cards,” he said. And Conway admitted the plaintiffs’ lawyers weren’t exactly confident about the suit when it was filed. “We filed the case because the statute of limitations was running out,” Conway said. It wasn’t until two years later, he said, that “we began believing that these people really were injured by what was in these wells.” Schlichtmann’s absence loomed over the panel. He didn’t return a phone call for comment but did say this at a panel held at Cornell University, his alma mater: “[The legal battle] was wasteful. We need to work together. Our role as lawyers is to help resolve problems, not make problems. Our job is to find the common interests and resolve the dispute. Lawyers have a role in making this occur.” Which is surely music to Brazil and Nelson’s ears. Nevertheless, Schlichtmann may want to avoid appearing before them in the near future.

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