AND NOW FOR THE HEROIC PARALEGAL--ERIN BROCKOVICH
By Michael Asimow
Is law practice about cold-blooded focus on the bottom line? Or is it about passionate commitment to justice? Erin Brockovich casts a powerful vote for the second approach. In the process, it sends an inspiring message about law, lawyers, and the legal system. It's also a much-deserved accolade to the supporting staff of modestly compensated secretaries, investigators and paralegals that stand in the shadow of lawyers.
The film is not only "based on a true story," it sticks quite closely to the actual events. Brockovich is an unemployed, single mother of three when she talks her way into a file clerk job at Masry & Vititoe, the Los Angeles-area firm that had recently represented her in a losing personal injury case. She is a trashy-dressing, trashy-talking dynamo with a steel trap mind and a definite problem of impulse-control. She is also empathetic and terrific with clients.
Brockovich stumbles onto some peculiar facts about the Jensens, who are pro bono real estate clients of the firm. Promoting herself into a paralegal, Brockovich starts poking around the high desert town of Hinkley where Pacific Gas and Electric operates a natural gas pumping station. She visits the local water board and charms the geeky official into letting her go over the records by herself. She discovers that PG&E stored hexavalent chromium in unlined cooling ponds at the site and the chromium had polluted the water table. This type of chromium is quite toxic to human beings. And PG&E had disclosed just enough facts to the locals to start the statute of limitations running but failing to alert them to the danger.
Single-handedly, Brockovich signs up and manages over 600 clients in Hinkley and Masry finds himself head to head with the giant PG&E. The plaintiffs reject a low-ball settlement offer, survive motions to dismiss, and are headed to trial. Nearly broke trying to finance the monster case, Masry associates in two big-shot lawyers to provide the muscle to fight on. Ultimately, Brockovich comes up with the killer document that opens the door to punitive damages and PG&E folds. It offers to resolve the case through a judicial arbitration that would award between $50 million and $400 million. Brockovich persuades the entire army of plaintiffs to give up the right to a jury trial and agree to the arbitration. The case then settles and the plaintiffs and Masry split $333 million.
Erin Brockovich is not a courtroom movie. It could have been; there were several full-fledged toxic tort trials replete with dozens of experts before a three-judge arbitral panel. These trials on behalf of 39 of the plaintiffs yielded awards of $131 million and caused PG&E to agree to the overall $333 million settlement. But a focus on the trials would have decentered Brockovich. And she's the heroine of the piece. Her drive and single-minded focus on the sick people who had been poisoned by PG&E drove the case at every point and propelled Masry, against his better judgment, into what could have been a suicidal commitment.
From the point of view of a law and popular culture commentator, the great thing about this uplifting film is that it extols a passionate, client-centered approach to law practice. Masry was terrified by the case, and justifiably so. Masry ran a two-man law firm and had survived a quadruple bypass. He was thinking about retirement. How could he possibly afford to fight a dragon like PG&E in a highly technical toxic tort case on behalf of hundreds of fractious clients?
Just remember the flameout of Jan Schlictman, the anti-hero of A Civil Action, who foolishly tackled two giant corporations in a toxic tort case. Or the conclusion to The Rainmaker--an implausibly huge judgment against an insurance company turns to dust when the company declares bankruptcy. The decision to forge ahead with the Hinkley case was anything but a rational bottom-line oriented decision--and that makes it so very different from law practice as it exists today.
Another great thing about Erin Brockovich is that it makes clear the importance of empathy in relationships with clients. The high powered attorneys who joined the case couldn't communicate with the ordinary people out in Hinkley. But Brockovich could; the clients liked and trusted her and she kept the group together until the final triumph. The importance of empathy and passionate commitment to clients is something we seldom teach in law school, but which is critical to success in the world of law practice.
Based on published accounts, the film adheres quite closely to the historic facts about the Hinkley case. The lawyers whom Masry associates in to carry the case were in fact two substantial plaintiffs' firms who made a massive investment in the case (said to be about $12 million). The male lawyer, Kurt Potter, is a composite of Tom Girardi and Walter Lack. The female lawyer, Theresa Dellavale, is fictitious. Unfortunately, the condescending and uptight Dellavale, who had no clue how to talk to the clients, is all too typical of female lawyers in the movies--unpleasant, miserable, acerbic people you wouldn't want as a friend. Dellavale's characterization is the thing I liked least about this film.
The killer document implicated the top management of PG&E in the Hinkley cover-up. Under Calif. Civil Code §3294, in order to support a claim for punitive damages against a corporation, it is necessary to show that an officer, director or managing agent of the corporation ratified the wrongful conduct. The document was clearly the key to the arbitrators' huge punitive damage awards. In the film, the document is turned over to Brockovich in a bar by a rather sinister looking fellow who Brockovich thought was trying to pick her up. He was a PG&E employee who had been told to shred documents but had saved the critical ones. He was out for revenge since his brother (also a PG&E employee) had just died from chromium poisoning. In fact, there were two sources for this material, including a bartender; PG&E hired them to transport all the historical records about the chromium from the "boneyard" where they were stored to the dump. This episode illustrates what all trial lawyers know--the difficulty of covering up evil conduct and the likelihood that somebody will spill the beans.
Kudos to the filmmakers for this uplifting and accurate movie about tort law, passionate lawyers, and the unsung people who make it all happen.
Michael Asimow, of UCLA Law School, is co-author with Paul Bergman of Reel Justice: The Courtroom Goes to the Movies (1996), available at local bookstores or through amazon.com. Prof. Asimow has published and article entitled "Bad Lawyers in the Movies" - Vol. 24 of Nova Law Review. Michael Asimow's email address is email@example.com.