Lago Agrio: Judge Guerra’s Testimony

Today Chevron filed the witness statement of Judge Alberto Guerra Bastidas, a star witness if not the star witness of Chevron’s case. Judge Guerra retells the story we have already seen of the ghostwriting, the bribes, and so forth. Guerra retells the story of his ghostwriting relationship with Judge Zambrano, Donziger’s involvement, the payments from Zambrano and others, and so forth. Bernard Vaughan has a good account of his testimony, which apparently included some oral direct examination. My favorite tweet about the testimony comes from @pulvdiggity via @Fedcourtjunkie: “I lied before but now I’m on the side of a big corp, so you should believe me.” Yet it’s important to note that Guerra has some corroboration in the form of bank records showing deposits to his account by Judge Zambrano.

Rather than go through the testimony in detail, I want to make the following observation. I was struck by the ordinariness of the corruption Guerra recounts. Guerra and Zambrano would have thrown the game for Chevron if only Chevron had been willing to pay. There was nothing apparently political about the corruption Guerra recounts. It was good old-fashioned graft. Remember, though, that it’s important to Chevron to be able to say that the Ecuadoran courts changed dramatically and for the worse with the political changes in Ecuador, including the election of President Correa. Chevron wants to make this case because it wants to explain why it was okay to say, at the forum non conveniens stage, that the Ecuadoran courts were good enough, and then to say, at the recognition stage, that the Ecuadoran courts are so bad that their judgments cannot be recognized. But if we’re just talking about ordinary graft, and not politically motivated judging, then why is there a strong case to be made about a changed judiciary in Ecuador?

Doug Cassel, I will look forward to your thoughts on this!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

7 thoughts on “Lago Agrio: Judge Guerra’s Testimony

  1. Dear Ted,

    This was no mere graft. Without being exhaustive, you might recall from my earlier writings that when representatives of the Lago Agrio plaintiffs first met with President Correa shortly after his inauguration in 2007, their own internal messages indicate that he offered whatever help he could, including his offer to speak to the judge in the case for them. When the fraudulent judgment came down, President Correa called it the most important judgment in Ecuadorian history. His top lawyer publicly praised Judge Zambrano (who, as you recently noted, was later removed from the bench by judicial authorities for apparent collusion with a drug trafficker). As for the various appeals since the judgment was rendered, any appeals court judge who hopes to keep his job will have heard the message loud and clear: President Correa will not tolerate any deviation from the party line on this case.

    I could cite more examples, but the bottom line is that this was not merely garden variety graft by two corrupt judges (Guerra and Zambrano); it was and is a judicial proceeding harnessed, at all levels necessary, to the political purposes of President Correa. Once Correa became interested in the case, there was no way that Chevron could win, no matter what the evidence might show.

    1. Thanks for responding, Doug! I had a feeling this post would be like a bat signal for you. I guess I am now looking at this through the perspective of trial. If it were important for Chevron to show not just that Guerra was corrupt, but that he was corrupt in the way you say he was corrupt instead of the way I say he was corrupt, has (or will) Chevron met that burden? Based on the Guerra declaration, I would say, “not yet.” I presume that if anyone applied any political pressure to Judge Guerra, it would have been reflected in the declaration, no?

      Now it may be that it is not important for Chevron to make this kind of showing, since no one but me and the occasional commenter at Letters Blogatory seems particularly concerned about whether Chevron should be estopped to argue against recognition of the judgment. If there’s no question of estoppel, then demonstrating a change in country conditions as a way to get out from an estoppel isn’t important, I guess. Still, though, I wonder whether we will see any evidence of political interference in the case at the level of the Provincial Court. I agree with you that Chevron may have different arguments about the appellate judges.

  2. Thanks for quoting a tweet you clearly didn’t understand. When a witness claims he was paid by one side to lie, while being paid by the other side, his credibility is nil. The tweet was followed by #notajurytrial. Because the credibility of said witness before a jury would be nil.

    But I now have tons of Ecuadorians tweeting at me.

    1. Thanks, @pulvdiggity, and I’m sorry for the trouble. I think I understood your tweet, and I more or less agree with it: you may want to see this post. Basically, I think that Judge Guerra has little credibility and that the finder of fact might well choose to disbelieve him, and thus that corroboration is highly important; and that at least some of the supposedly corroborating evidence is of questionable admissibility.

Leave a Reply

Your email address will not be published. Required fields are marked *