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?
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 Darrow 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.