As I was reading Paul M. Barrett’s new book, Law of the Jungle I was kicking myself. There’s obviously a market for popular treatments of the Chevron/Ecuador case. Barrett’s book is not the only one: Michael Goldhaber’s Crude Awakening has just been published, too (here’s my review). I coulda been a contender! When we spoke, Barrett told me he has already been talking with a major studio, which is no surprise given that the book has some highly cinematic moments and seems made for the big screen.
I asked him who would play Donziger (he didn’t know), but what I really want to know is: who is going to write the book and make the movie about the enterprising blogger who devoted three years of Sundays to covering the twists and turns in the case and will be played by George Clooney … well, no one has optioned that story yet!
First, the bottom line. Do I recommend this book? You bet. Barrett has pulled together a lot of the key strands of what happened in Ecuador in a more comprehensive way than any other writer, to my knowledge, has done. He writes with assurance and brings the story to life in a way that I think will really engage the general public. And he makes clear what longtime readers of Letters Blogatory already know: there was fraud in the Lago Agrio trial. I need only mention the Cabrera report (and the circumstances leading to the appointment of Cabrera as the supposedly independent expert), the Calmbacher report, and maybe—maybe—the bribery of Judge Guerra and the ghostwriting of the judgment. Those who know a lot about the case already, whether they are partisans for one side or the other or just interested observers, are bound to say, “but what about this, that, or the other important point that Barrett has overlooked?” But I don’t think that specialists and partisans—“Chevronologists,” to use Goldhaber’s term—are the intended audience.
Even before publication, Barrett’s book has generated a lot of heat from the Donziger camp. This is hardly a surprise, as the book brings together many of Donziger’s major missteps in a way that can’t make Donziger happy. One of the main critiques from those on Donziger’s team who have read the proofs is that the book is one-sided. The criticism is unfair, since Barrett does take Chevron and Texaco to task for some of their more ethically questionable moves, for example, the Borja fiasco, in which the cartoonish Diego Borja, at Chevron’s behest, sought to entrap an Ecuadoran judge in a bribe and then told stories about it every which way from Sunday, the attempt to recruit a journalist as a plant, and the payments to witnesses, as well as for its poor environmental practices in Ecuador, its ill-considered decision to seek to have the case heard in Ecuador in the first place, and its failure to spend some money remediating the problem decades ago that has instead gone to lawyers, probably many times over. But there’s no question but that the book is primarily an indictment of Donziger himself rather than an in-depth look at the other players. That’s the book Barrett set out to write, and when we spoke he made no apology for his focus. No book could hope to cover every aspect of the case comprehensively, and I think Donziger is a Shakespearean figure worthy of a book-length treatment. This isn’t the book-length treatment Donziger hoped for, but I don’t think that focusing on Donziger makes the book somehow dishonest, as the criticism suggests.
To recap: Steven Donziger, an idealistic but inexperienced Harvard Law School graduate, takes on Texaco and its corporate successor, Chevron, over claims of widespread environmental contamination in the Oriente region of Ecuador. Each side makes catastrophic mistakes in the litigation. For its part, Texaco foolishly urges the US courts to dismiss the case so that it can be heard in Ecuador, which, according to Texaco, boasts a judiciary of sterling reputation, well able to handle a major environmental tort lawsuit. For his part, Donziger, after repairing to Ecuador, foolishly invites a film crew along to record his grandiose pronouncements about the corruption of the Ecuadoran judiciary, his intention to strike fear into the heart of the judge, etc., as well as his behind-the-scenes efforts to engineer the appointment and shape the conclusions a supposedly independent environmental expert, Richard Cabrera (or as Chevron calls him, Richard Stalin Cabrera Vega), was to present to the Ecuadoran court. Donziger, who I think would say he was just trying to keep up with Chevron’s dirty tricks, engaged in dirty tricks of his own, most prominently engineering the appointment of Cabrera and then, through behind-the-scenes experts, writing the report while concealing its true authorship, and—if, like Judge Kaplan, you credit the testimony of Judge Guerra—the outright bribery of the judges who rendered the first-instance decision. Chevron, due to discrepancies between various released versions of the documentary film, is able to obtain a trove of outtakes revealing questionable statements and tactics by the Donziger team. Ultimately Chevron is able to obtain an order requiring Donziger more or less to open all his files to Chevron. Chevron sues Donziger and the plaintiffs for violations of the RICO statute. Meanwhile, Donziger’s team wins the lawsuit in Ecuador, but in light of Chevron’s attacks on the proceedings, it’s clear that the fight has just begun. Barrett isn’t really interested, in his book at least, in the doctrinal aspects of the RICO suit. For him, the suit is most important for what it disclosed about what happened in Ecuador. To Barrett—and he and I don’t see eye-to-eye on this—the Ecuadoran judgment is not just fraudulent but wicked fraudulent, and it should not be respected anywhere in the world. That’s the basic conclusion of his book, and he hangs the blame squarely on Donziger’s shoulders.
I asked Barrett whether his dim view of Donziger and his less-dim view of Chevron had to do with the outcome of the case in Ecuador. Chevron has, very cleverly, gone on offense and made Donziger’s misdeeds the center of attention in the ancillary litigation that has followed on the conclusion of the litigation (through the first appeal, at least) in Ecuador. But suppose the case had come out the other way, and Chevron had won. Would not the focus then be on, for example, Chevron’s attempts to entrap the Ecuadoran judges via its unhinged henchman, Diego Borja, or the manipulation of the judicial inspection process that more recently has come to light in the arbitration between Ecuador and Chevron in the Hague? Barrett agreed with me in a trivial sense: if the world were different the world would be different. But he didn’t take my broader point. It does seem to me that part of the brilliance of Chevron’s strategy, under the tutelage of Gibson & Dunn lawyer Randy Mastro, has been to align its legal strategy with its PR strategy and to make the case about Donziger’s misdeeds instead of about pollution in the Amazon. If Chevron had prevailed in Ecuador, I think the real story would then be a story about Chevron’s questionable tactics there, which Barrett covers briefly, but without nearly the vigor he devotes to Donziger.
It’s natural to compare Barrett’s book with Jonathan Harr’s A Civil Action. And in many ways, Barrett has earned the comparison. Harr’s book is notable for its smooth mix of the nitty-gritty of civil litigation and its ability to evoke a thriller. Barrett’s book, which likewise gets into the nitty-gritty, has elements of a thriller, and some of the scenes are so clearly cinematic that you can almost see the scene unfold. Here is an arresting description of the long-awaited showdown between Randy Mastro, Chevron’s lead lawyer, and Judge Zambrano, the author (?) of the Lago Agrio judgment:
“Mr. Zambrano, welcome to New York.” The greeting from Chevron’s lead attorney, Randy Mastro, could not have been more enthusiastic or less sincere. Chevron had called Zambrano in the fall of 2013 as a “hostile witness” in the company’s racketeering suit against Donziger and his clients in the U.S. District Court in Lower Manhattan. Mastro intended to shred the fallen Ecuadorian judge’s unlikely account of how he wrote the February 2011 Lago Agrio judgment.
* * *
Accustomed to an equatorial climate, Zambrano began his appearance sipping hot tea from the courthouse cafeteria and wearing a long charcoal-colored coat over his dress shirt and tie. By the second day, he had added a gray scarf, black gloves, and a red knit Angry Birds hat. The eyes of the Angry Bird appeared just above Zambrano’s own, so he appeared to glare at Mastro with four furious eyes.
And here is the scene of a dramatic confrontation between Barrett himself and Donziger (Christopher Gowen, one of Donziger’s lawyers, was with Donziger during the encounter):
At the restaurant on Broadway, Donziger ordered an iced tea and asked what questions I had. I’d been asking questions for many months without getting any answers, I responded. Why the change?
Donziger glared at me. Then he blurted that I hadn’t been writing about the trial—an excedingly odd statement, as I’d written more than any other journalist. Gowen seemed as perplexed as I was. Donziger then leaned over the small bar table and extended his index finger toward my face. Why, he demanded, was I “covering up” for Chevron?
“That’s ridiculous,” I said. I would leave, I added, if he tried to intimidate me. Donziger started shouting about my role in a cove-up, so I got up and left. A few steps outside the restaurant, I realized he was following me, still bellowing. Gowen trailed behind us, begging Donziger to stop. I turned to face them.
“You are a biased journalist!” Donziger yelled. “You are a biased journalist!” He loomed over me (at six-four, Donziger was eight inches taller than me), his index finger again in my face. “I am going to expose you! You are a biased journalist! You are going to be exposed!”
* * *
Fortunately, after a few more loud threats, Donziger turned and stalked off toward his apartment on 104th Street. I’d never gotten a word out. I turned to Gowen, who had watched the encounter, mouth agape. “This,” Gowen said, “is why everyone hates Steve.”
I asked Gowen about the scene: had Barrett recounted it accurately? Not really, Gowen told me. According to Gowen, on the eve of trial, Gowen had arranged for Donziger and Barrett (as well as some other journalists) to meet at a restaurant on Broadway near Donziger’s apartment. Donziger and Gowen knew from one of Barrett’s sources that Barrett was investigating the finances of Donziger’s father’s estate. Donziger confronted Barrett about this, and things got heated. Donziger stood up and said, “I’m out of here.” Not to be outdone, Barrett also stood up and said, “no, I’m out of here,” as though the two of them would have a fight about which one would get to be the one to walk out on the other. The two then confronted each other on the street, and Donziger did call Barrett a “biased journalist.” It was all very heated. Donziger then walked away, and Barrett proceeded to lecture Gowen for a few minutes. Gowen’s impression was that neither man acquitted himself particularly well. And according to Gowen, it was Barrett who said to Gowen, “that’s why everyone hates Steve,” and not vice versa.
Barrett, by the way, was none too pleased when I raised the discrepancy in the two accounts with him. I can’t say I blame him: in his book, Donziger is the story; Barrett himself didn’t set out to be the story. Still, when you write about something that happened to you yourself, I suppose you invite the kind of efforts I made at verification. Barrett’s basic response was that it was a mistake to treat the discrepancy as a “he said, she said” problem with two equally credible witnesses saying different things. He, Barrett, is a well-respected reporter, while Gowen, the implication went, was on the team with someone who had sought to defraud the courts in Ecuador. (I should say that I haven’t studied Gowen’s role in any detail, but I’m not aware that he had anything to do with the wrongdoing in Ecuador). Barrett’s point was fair, but I didn’t feel comfortable relying on it. For a long time, but particularly in the past few days, several very highly credentialed journalists have subjected Donziger to withering criticisms, and given that Donziger has a lot of non-elite public opinion behind him, I think it is not a good idea to point to the elite credentials of his critics as a reason for accepting their views. Barrett also pointed me to an email Gowen sent him after the incident, apologizing on behalf of Donziger. He asserted that the email is proof that his recounting of events is correct. But the email apology doesn’t really say what Gowen is apologizing for, and it seems, to me at least, consistent with Gowen’s view, which is that both men acted badly, especially since Gowen knew that Barrett was writing about the case and had a reason to try to placate him. In short—I can’t say I know what happened between the two men, and the incident just goes to show how even the smallest point of contention in this case can become a major flashpoint.
Back to the book. My main critique is not really factual but legal: the book doesn’t take the Ecuadoran legal proceedings as seriously as I think they ought to be taken. Barrett presents some of Chevron’s positions as legally unproblematic, suggesting that Chevron was right to be astonished when the Ecuadoran courts did not agree. The clearest example is Chevron’s assumption that the new environmental law that Donziger and his allies helped to craft would not apply to it:
The oil company’s Quito-based lawyers knew about the new environmental law, but they assumed it would not apply retroactively to conduct in the 1970s and 1980s. The Ecuadorian Civil Code forbade the retroactive application of newly created rights. The Quito attorneys, the former Texaco executive noted, overestimated their court system’s fidelity to convention, including the rule on nonretroactivity. “It came back to bite us.”
The Ecuadoran courts disagreed, and surely they, not Barrett, I, or any US court, is in the best position to judge what Ecuadoran law has to say.
Similarly, as the briefs on behalf of Donziger and the Ecuadoran plaintiffs in the Second Circuit have shown, it’s important not to impose our common law understanding of how things work on the Ecuadoran system. It’s a mistake to treat a civil law appeal, with the de novo fact-finding entailed, like a common law appeal, and thus it is a mistake to regard the flaws of the first-instance judgment as necessarily fatal, as I think Barrett implies they are.
Indeed, Barrett focuses almost exclusively on the proceedings in the first-instance court. He describes judges easily cowed, the circus-like atmosphere at the judicial inspections that took place in the field, and the general mess of the Ecuadoran trial. But that’s not the end of the story. I put the Ecuadoran’s case to him in what I take to be a pretty strong form: Yes, Chevron showed that there was fraud in the proceedings in the first instance court. In particular, the Cabrera report was fraudulent, and if you believe Judge Guerra, the judgment itself was the product of fraud and bribery. But neither Barrett nor Chevron has made a case that the appellate procedure was similarly flawed. Nor have they really shown any political interference in the appellate proceedings or even in the first-instance proceedings, despite references to the fiery speeches by President Correa. In fact, if you believe Judge Guerra, whose credibility was questionable and not so well corroborated, the main corruption in the first instance court was not about politics at all, but about money—Judge Guerra claims his first choice for soliciting bribes was Chevron! In the absence of such a showing, it is for the Ecuadoran higher courts to correct the errors of Ecuador’s lower courts. This is particularly so because Texaco, Chevron’s corporate predecessor, eschewed trial in New York expressly in favor of trial in Ecuador, and because it seems that Chevron has not even exhausted its remedies under Ecuadoran law. So (according to the view I put to Barrett) it is right and just that Chevron should have to abide by the results of the Ecuadoran trial. Somewhat to my surprise, Barrett, while he disagreed, did not vehemently disagree.
I think Barrett’s basic view is that the Ecuadoran judgment is too tainted to be rescued, though he acknowledged the force of the argument, which he credited to Burt Neuborne (though Donziger’s appellate lawyer, Deepak Gupta, has made a similar argument, and though the argument is also supported by several amici curiae). But while I’m not certain of this, I think that Barrett would not be horrified if the judgment were affirmed, as long as Donziger, whom he clearly regards as the chief villain of the story, does not benefit by it. Barrett made the point, echoing a recent article by Neuborne, that some sort of claims process, such as the process used to resolve Holocaust survivor claims against German firms, might be the best way to reach a resolution, but I wonder whether the parties are so entrenched that any resolution short of a final judicial showdown has no real likelihood of success.
Stay tuned tomorrow for my review of the new Goldhaber book!