I don’t know whether the timing of Michael Goldhaber’s new e-book, Crude Awakening, which came out shortly before Paul Barrett’s Law of the Jungle, was mere coincidence, but it is fair to say that for Steven Donziger, September is the cruelest month. Folks who have not been following the twists and turns of the Chevron/Ecuador case are going to read these two books, and together they paint a devastating picture of the larger-than-life Harvard Law School graduate.
Takeaway: I recommend the book. Goldhaber is a terrific, witty writer. The book presents an enormous trial record and Judge Kaplan’s basic findings of fact very clearly and concisely, and the book is very well-informed on federal civil procedure and even on such arcana as the law of evidence. For lawyers especially, it will be a pleasure to read.
While Barrett’s book focuses mainly on what happened in Ecuador and much less on what happened in New York, Goldhaber’s short book (available only as an e-book for the Kindle, as far as I know) is really a retelling of the RICO litigation. Goldhaber was in the courtroom during the trial, and it shows. But to my mind the best part of his book deals with what happened outside the courtroom, behind the scenes on the Chevron litigation team. We read about Paul Dans, the lawyer passed over for partnership who went to work for one of the many firms working for Chevron and who first had the idea to try to get a hold of the Crude outtakes. We read about “Chevron’s Nancy Drew,” Sara McMillen, a scientist who not only marshaled Chevron’s scientific case on causation, but who also had the idea that the Zambrano judgment might have been ghostwritten by the plaintiffs’ team. And we read about Gibson Dunn’s Andrea Neuman, who managed much of the § 1782 motion practice and depositions and who has probably done more to develop the law under § 1782 than any lawyer could expect to do in a lifetime. As a junior partner in a law firm myself, and someone who still plays second fiddle pretty frequently, I think the look at the folks who made up Randy Mastro’s team will be eye-opening for the general reader, who sees the trial lawyer in court but has little idea of all the work that makes an excellent trial presentation possible.
Goldhaber also focuses on Judith Kimerling, who for him is to Donziger as Yoda is to Darth Sidious—a wise force for good, sidelined teaching at the Jedi Academy while his dark counterpart, behind a fabulous facade of PR, hatches his evil plots. Kimerling, in Goldhaber’s retelling, is the real deal:
Fresh out of Yale Law School, she helped to pioneer the prosecution of toxic polluters at Love Canal. In 1989 she cashed in her frequent-flier miles, bought the cheapest black knee boots she could find, and hiked a stretch of the Amazon that until then had interested no one in the West except missionaries and petroleum engineers. Kimerling stumbled on hundreds of unlined waste pits in the rain forest. The indigenous people poured out their hearts to the petite young woman, who cared enough to ask about their health, and a sympathetic bureaucrat leaked her data on local oil pollution. Kimerling typed out Amazon Crude on the first computer she ever owned. Published by the Natural Resources Defense Council, it was hailed by The New York Times as Ecuador’s Silent Spring. By all accounts, Kimerling is the godmother of the Amazon litigation …
As a young public interest lawyer, Kimerling told the world about what she saw in the rain forest. She then watched in horror as Donziger prioritized dishonest public relations over evidence-gathering.
I like my Yoda/Palpatine analogy, but it’s worth pointing to the list of dramatis personae at the beginning of Goldhaber’s book, which contains a bunch of zingers, too. Donziger is Ahab, and Pablo Fajardo is Queequeg. Mastro and Neuman are “the hosts of the barbecue,” Dongizer’s lawyers, Rick Friedman and Zoe Littlepage, “worked for the grilled meat.”
Barrett was not insensitive to the plight of the Ecuadoran plaintiffs, but I think Goldhaber goes further than Barrett here. In a section of his book titled “The Underlying Truth,” he basically takes the position that due to the fraud in the Ecuadoran proceedings, the question of Chevron’s true liability has yet really to be determined. And he quite correctly rejects the lessons groups like the US Chamber of Commerce have sought to draw from the case. Unlike some right-wingers, Goldhaber’s point isn’t that transnational tort litigation is a fraud; it’s that Donziger is a fraud who has maybe made things worse for other environmental and human rights lawyers. (One small misstep here: Goldhaber bemoans the fact that even after the RICO case, “the Harvard Law School Human Rights Program honored Donziger with an invitation to speak on the future of corporate impact litigation.” I was at the event, and I can say that while Donziger may have felt that the invitation was an honor before the fact, I doubt he felt that way afterward in light of the drubbing he took, mostly from Professor Charles Nesson).
I put to Goldhaber the same case I put to Barrett, to get his response: 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 and to Goldhaber) it is right and just that Chevron should have to abide by the results of the Ecuadoran trial. As I wrote yesterday, Barrett did not reject this argument out of hand, but Goldhaber did not pull any punches. After rightly pointing out that the instances of fraud I noted were not the only ones (I didn’t mention the Calmbacher fraud, for example) and that the Ecuadoran appellate court “did not review, nor purport to review, the factual evidence of multifarious fraud,” he argued that Chevron had proved in New York “that bribery is pervasive in Ecuadorian courts, that Correa controls the courts, and that Correa’s embrace of the plaintiff’s cause was common knowledge.” “The Lago Agrio trial,” he told me,
was a sick joke. Any court that approved it was in on the joke. Any outsider who would let it stand doesn’t get the joke. We should not overlook fraud when it stares us in the face. We should not respect a culture of corruption in the name of respecting a culture.
That’s well-put, but I want to push back on it a little. Remember—there was no actual evidence of corruption at the appellate level in Ecuador in this case. So the theory really is that the Ecuadoran courts as a whole simply fail to provide impartial tribunals or due process. Well, did Chevron feel that way when it won a $1.5 million judgment against the Ecuadoran government in the Ecuadoran courts in 2007, after President Correa’s election? How about in 2008, when the Ecuadoran appellate courts reversed the dismissal of another Chevron lawsuit against the government? I’m not going to make any extravagant claims about the Ecuadoran judiciary—the parties did enough of that in the forum non conveniens proceedings in New York. I think that anyone who knows about these things and who had a choice would choose to have his big case judged in the US District Court for the Southern District of New York, one of the world’s great trial courts, rather than in the provincial court in Lago Agrio. But my big-picture view is that Chevron thought it was getting a small-time, unsophisticated, perhaps corrupt right-wing court system, and due to the intervening political changes in Ecuador, what it ended up with was a small-time, unsophisticated, perhaps corrupt left-wing court system, which to my mind is hardly grounds for much outrage. In the Letters Blogatory symposium on forum non conveniens and recognition of judgments, I put it this way: “I think it is fair to say that in seeking an FNC dismissal, Chevron took a calculated risk that the political winds in Ecuador would continue to blow its way. It does seem to me to be inequitable not to require parties in the position Chevron found itself at the FNC stage to bear the risk they took.”
In the end, then, my critique of this excellent book is very similar to the critique I ventured of Paul Barrett’s book. Neither book takes the Ecuadoran judicial process seriously enough in my view. I think, in light of all the commentary on these two books I’ve read in the past few days, that I’m clearly in the minority here. I encourage readers to think about comity as a reciprocal relationship between states and to wonder whether all of our institutions would stand the kind of scrutiny we’ve been applying to Ecuador’s institutions in this case, and to consider how the kinds of criticisms we have been leveling at Ecuador might affect diplomatic relationships if they were instead leveled at us. Here endeth the lesson.