Aaron Page is once again true to form. Dodge and distort the message; attack the messenger. Does he also imagine that the six distinguished human rights and anti-corruption experts, who filed the amicus brief denouncing Donziger’s “ends justify the means” philosophy of litigation, were paid for their services? And if anyone still doubts that Donziger’s team bribed judicial officials, they need only read the portions of Judge Kaplan’s opinion detailing the dates and amounts of the secret payments to Cabrera, the Ecuadorian court’s so-called “independent expert.” If, even now, Page cannot bring himself to see the unacceptability of such misconduct, one doubts that he ever will.

The fabricated charges have been advanced by Chevron, at the expense of billions of dollars, not “in the interests of justice,” but to serve Chevron’s interest in tainting the judgment against it and avoiding responsibility for the hundreds of oil waste pits and thousands of devastated lives it left behind in Ecuador. I sincerely doubt Cassel is naïve to relevant context like this on matters where he genuinely acts as a professorial voice of conscience, as opposed to a paid advocate.

The Cabrera report was, as I wrote, the result of uncertainty about expectations and obligations in the largely unfamiliar world of provincial Ecuadorian litigation practice. Neither Donziger, Stratus, nor anyone else involved intended to (or did) commit fraud. To the extent they were aggressive in their practice and interpretation of their obligations in relation to Cabrera’s independence, they felt justified (if not obliged) to engage as they did because Chevron, with a far more sophisticated legal and expert team, regularly presented the carefully composed work of its own experts to the court as “independent,” and worked (and paid) court-appointed experts of all stripes on an ex parte basis. To the extent that plaintiffs-side judgment calls can be called into question now, there is NO question that these issues were presented to and were resolved by the Ecuadorian justice system. To pretend they still justify a get-out-of-jail-free card for Chevron, as Cassel does, reveals the deep biases in his assessment.

I appreciate Cassel’s relatively clear disclosure, lacking from many of his earlier interventions in various forums. Nonetheless, the fact that his paid consultancy with Chevron is over (for now) is of limited significance. If Donziger remains demonized, Cassel’s decision to take Chevron’s money to participate in that demonization is perhaps questionable, but passable. If Donziger escapes from the demonization frame, Cassel’s decision is revealed as truly mercenary. So Cassel has a huge interest in keeping Donziger in the demonization box. Hence his post.

Not that he shouldn’t be heard. Just that this is the appropriate frame to receive his views. His struggle to deny that frame and lay claim to meaningful “independence” is unconvincing.