Lago Agrio: New York Update

So let’s get caught up with New York. First, Judge Zambrano’s testimony. You can find summaries from Paul Barrett, Roger Parloff, and Joseph Ax online. Judge Zambrano testified that he, not Judge Guerra, wrote the decision. So as far as direct evidence goes, score one for Donziger and the LAPs. But the cross-examination, according to the online reports I read, was effective. Randy Mastro showed that Judge Zambrano was not very familiar with the details of his own judgment. What are we to make of this?

Randy Mastro Examines Judge Zambrano
Illustration by Elizabeth Williams, used with permission.
I think judging the credibility of the Zambrano testimony is one of those “you had to be there” kind of things. It’s difficult to know at a distance whether the cross-examination was as devastating as press accounts make it seem. I did a little thought experiment: I called to mind the brief I spent the most time on in 2011 (a brief to the Massachusetts Appeals Court in an appeal from a decision denying a motion to vacate an arbitral award) and tried to recall as much detail about the case as I could. It’s not very easy to do! Of course, I could have studied the brief and the file and made myself very familiar with its contents. But suppose I had done so. Would my familiarity be evidence that I had written the brief myself? No, it would just be evidence that I had studied it. And anyway, suppose Judge Zambrano had spent the time memorizing every detail of his judgment before his testimony. I’m reminded of the story (maybe apocryphal) of Clarence Darrowof Max Steuer cross-examining a not-very-sophisticated witness who, he believed, had been coached by the other side on what to say. He got her to tell her story, and then he asked her to do it again. She told the story again, using exactly the same wording. And then he asked her to do it again, and again, she told the story using exactly the same words. She was too well-prepared to be credible. I have no doubt that Mastro would have been able to make too much familiarity with the judgment look suspicious. Chevron also put on fancy experts to opine that there was no way Zambrano could have read the entire record, of hundreds of thousands of pages, in the time he said he did. I believe Chevron on this, and I don’t think we needed fancy experts to make the point. But is this really critical? Judge Zambrano would hardly be the first judge not to read the entirety of a record, but the issue is corruption, not sloppiness, and the possible big lie (about who wrote the judgment), not a venial lie (about whether the judge did as good a job as he should have). All of this is just a way of saying that decisions about credibility are for the finder of fact and really require one to be present in person for the testimony in order to judge. The real question is what Judge Kaplan thought of Judge Zambrano, and it seems the answer to that question is: “not much.”

Maybe the more important new witness, at least given the concerns of Letters Blogatory, was Vladimiro Xavier Álvarez Grau, who submitted a lengthy declaration on Chevron’s behalf taking aim at the quality of the Ecuadoran judiciary. You may ask what this has to do with the RICO claim. After all, it’s not as though Donziger and the LAPs sought to be in Ecuador. The allegation is that they were part of a bribery scheme with Judge Zambrano, but that kind of graft doesn’t really have anything to do with the political story Álvarez tells. I’m not going to recite the details of Álvarez’s declaration, which is an interesting and concerning read. But this seems to me like the main event, because what Chevron really wants—especially now that the Ecuadoran judgment has been affirmed, is to make sure that it isn’t recognized or enforced in any country, and so it would be a real coup for Chevron to get a finding of fact from Judge Kaplan to the effect that the Ecuadoran courts do not meet minimum standards.

Here are some reactions to Álvarez’s narrative. First, Álvarez is a political enemy of President Correa. I don’t know the details of the politics here. But let’s just say Álvarez, by virtue of his history of involvement with Ecuadoran politics, is no Doug Cassel, that is, no independent academic expert. (Doug, if you’re reading this: how did you avoid this assignment?) By saying that, I don’t mean to doubt that Álvarez is a serious person. Second, much of the story of the Ecuadoran judiciary in recent years, particularly the apparent decline in judicial independence, is bad and problematic. Granted. On the other hand, I, as a stranger to Ecuador who don’t know much about recent Ecuadoran history or politics, read Álvarez’s declaration as a right-wing reaction to the left-wing political movement now governing the country, and I want to know more about what came before, before I judge. I am not in sympathy with either left-wing Latin American governments or right-wing Latin American governments. But it’s concerning to think that the courts of countries that are too far out of our own political mainstream, or the courts of countries that are undergoing political and constitutional upheavals, are simply beyond the pale for recognition and enforcement purposes. That’s not to say that the pressure the Correa government has put on the judiciary is okay—it’s not, though we should be modest about such things and remember that many of our own judicial practices (e.g., popular election of judges in many states, recall elections of judges who make unpopular decisions in some states, the politicization of judicial appointments even at the federal level) are subject to fair criticism abroad and at home.

The real question, I think, is whether any of the systemic problems with the Ecuadoran judiciary during Correa’s administration have anything to do with the Lago Agrio judgment. As far as I can tell, the actual story of corruption in this case, if Chevron’s evidence is true, is a story about plain old graft, not politics. The best evidence I can see for this is that Chevron’s star witness, Judge Guerra, said that he was prepared to sell his services to Chevron and only approached the LAPs when Chevron demurred. I think it will also be important to look at the new Ecuadoran judgment and see whether it hangs together, that is, whether people who are knowledgable about Ecuadoran law say that it passes the laugh test. That’s not something I can really opine on. My main point here is a point of caution when judging the courts of another country wholesale.

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.

6 thoughts on “Lago Agrio: New York Update

  1. I should probably expand on this post just a bit. With regard to Álvarez I’m really making two points.

    First, it may be that the courts of Ecuador could be deemed systematically inadequate under statutes such as the UFCMJRA. But in light of the forum non conveniens issue in the case, I think it’s very important to know what came before the recent upheavals. A really independent court system? Courts tilted the other way politically? A long period of stability or many swings back and forth?

    Second, comity counsels caution in evaluating foreign courts, particularly against evidence submitted by the new government’s enemies, even if they appear (as in this case) to have real credentials.

  2. I have followed this matter with interest, but not at your depth. Nevertheless, I find that many of your remarks are sweeping generalisations difficult to make about a foreign legal and judicial system. You also make a distinction between a court of appeal and a cour de cassation, implying that a court of appeal generally reviews findings of fact and takes new evidence. As a former appellate attorney, I find the distinction overly broad. It is rare, if ever, that a court of appeal permits the introduction of new evidence or reviews findings of fact by a lower court, unless the court sits de novo, or there is absolute abuse of the fact finding process. Courts of appeal review law not facts.

    I live and work in Kazakhstan, an extremely corrupt country, including a non-independent judiciary, according to external observers such as Transparency International. However, I could never state that the entire judiciary is corrupt or that decisions are entirely controlled by the Executive or other authority. It is too difficult to get the evidence. In your review, you refer to some professor, implying that he is above reproach. Without knowing more, this refernce is a form of a fallacy to “authority”, perhaps appropriate or not.

    You may be right. However, I believe it is difficult to support all your statements, given their breadth and the challenges posed by making statements about a foreign legal system, though you may have reason to think the process is politically driven.

    If I may ask, why are you so pro-Chevron?

    1. John, I find your comment somewhat confusing for a few reasons. First, nothing in the post or my earlier comment discusses cassation versus appeal. Second, I think that Álvarez may be a law professor, but I am pretty critical of his declaration. Third, I think it’s not really possible to characterize this post as pro-Chevron. Is it possible you meant to respond to a different post, perhaps Doug Cassel’s post, which is highly critical of the Ecuadoran courts?

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