“Facts are Created”
Posted on August 21, 2018
One of Chevron’s gotcha moments in the Crude outtakes is the clip of Steven Donziger speaking with members of his litigation team. “Facts don’t exist,” he said, “facts are created.” I draw a few lessons from this clip. The first, of course, is “Don’t ever travel with a film crew.” The second is a little more serious and specific: litigation is a search for the truth, not a game, and lawyers are not charlatans but rather officers of the court with an obligation to the truth as well as to the client. But with all that said, I want to give a sympathetic reading of Donziger’s comment here. I think it’s not just possible but probable that Donziger was trying to make a point that everyone should agree is true. And yet—and here is the irony—it’s precisely the point he was trying to make on film that undercuts much of what he’s been trying to accomplish as he fights a rearguard action to save his law license, avoid Chevron’s collection efforts, and avoid being held in contempt of court.
When we talk about “the facts,” sometimes we mean the facts as they truly are in the world. The earth spins on its axis. That’s a fact. There are oil byproducts in pits in the Amazon that pollute the groundwater. That’s a fact (a least it looked like it to me when I visited one of the pits). But in the sense that I think Donziger was likely speaking, sometimes we mean the facts that a judge or a jury finds to be true, and that are embodied in a court’s final judgment. So when he says “facts are created,” I think Donziger means that for legal purposes, the facts are what the judge or jury finds that they are, and that lawyers, if they do their job well, can make it more likely that judges or juries will find the facts in a way favorable for the lawyers’ clients. Saying “facts are created,” in this sense, is an exhortation to the team to do its job: “let’s make sure that we put all of the relevant facts before the court and that we argue persuasively for the inferences that we want drawn from the facts, so that the court will rule in our favor.”
In the way Donziger used the phrase, the emphasis is on the word “created.” Facts don’t just exist, facts are created. But there’s another way to think about the phrase. Facts are created. The court finds the facts, not just one story among others. Of course there is no guarantee that the facts that a court creates are true in the sense that it’s true that the earth rotates on its axis. Perhaps we should write facts′ for the facts that the court finds to distinguish them from the other kind of facts. But the facts′ that the court finds have legal consequences in a way that the other kind do not. And facts differ from facts′ in another way: in the scientific age, empirical facts at least are always liable to revision and correction. But facts′ are conclusive and unchangeable, except as the law provides (for example, the law provides a right of appeal from findings of fact to another court; it provides a means for the court to reject manifestly wrong findings by a jury immediately after a trial; it provides an opportunity to seek to set aside a final judgment in limited circumstances).
The irony—the reason Donziger finds himself in such a pickle—is that facts′ are created. The court has found the facts′, and the fact′ is that Donziger obtained the Lago Agrio judgment by fraud. (If you’re interested in distinguishing law and fact, you might say that the fact′ is that Donziger bribed the Ecuadoran judge, and that that fact′ justifies and compels the conclusion that he obtained the judgment by fraud.)
In the world of facts, maybe it’s fair to say that Judge Kaplan got it wrong and therefore the New York bar was wrong to suspend him from the practice of law. But in the world of facts′, of course the court suspended Donziger without an evidentiary hearing. There was no need for more evidence because the facts′ had already been established, Donziger had not appealed from the findings, and thus there was no longer any dispute about what had happened. And the law has rules specially designed so that once a court has found the facts′, someone who had the requisite fair opportunity to be heard before the court made its decision cannot later relitigate them.
This talk about facts and facts′ may worry you. Shouldn’t we be concerned if a court in a particular case “gets it wrong?” After all, a litigant’s property and reputation are at issue in most private civil proceedings. The answer: yes, of course we should be concerned. But the point of having courts is not just to get right answers. The point is also to get final, authoritative answers. In private law cases, courts are tools for resolving disputes. If courts can’t resolve disputes because litigation about the facts′ can never truly be over, then the courts fail just as surely as when they reach wrong conclusions.
Because everything these days revolves around Donald Trump, let me end by commenting on Rudy Giuliani’s claim over the weekend that “truth isn’t truth.” In a situation where the evidence conflicts (Mr. Trump says he never discussed the investigation into Gen. Flynn with Mr. Comey; Mr. Comey says otherwise), it’s possible that a court will get the facts wrong when it finds the facts′. I think this is probably what motivated Mr. Giuliani’s remark. That’s fair enough, and it’s a reason why lawyers advise their clients not to speak to government investigators at all, or to do so only very carefully—lying to investigators is itself a crime. But resolving battles about credibility is exactly what we have juries for. I think a jury, observing the demeanor of the two men and whatever pertinent evidence about their pasts a court would permit the jury to hear, would have no trouble finding facts′ that coincided with the true facts—which is why Mr. Giuliani, the former prosecutor, has started making claims like “truth is not truth.” There is no possible world in which “A is not A” can be true.