Steven Donziger, the American lawyer for the Lago Agrio plaintiffs, has filed a petition with the Inter-American Commission on Human Rights, alleging that the United States has violated his human rights in connection with the RICO case Chevron filed against him and also his suspension from the practice of law. Aaron Marr Page, a regular Letters Blogatory contributor, submitted the petition on Donziger’s behalf. The petition retells Donziger’s basic story, casting not just Chevron but the United States itself as the bad guy: Chevron, desperate to get out from under the Ecuadoran judgment, undertook a campaign to demonize him, which included taking discovery in the United States via Section 1782, bringing the RICO action against him in New York, vastly outspending him in that case, presenting the supposedly false testimony of Judge Guerra, and once the court had entered judgment against him, suspending him from the practice of law without an opportunity for an evidentiary hearing.

Before diving in to the substance of the petition, it’s worth putting the petition in a procedural context. The substantive relief Donziger seeks is:

  1. precautionary measures “limited to a request that the appropriate authorities in New York allow Mr. Donziger to contest the facts of the allegations against him with evidence at a public hearing, consistent with due process,”
  2. a declaration that the United States is responsible for violating several of Donziger’s rights under the American Declaration of the Rights and Duties of Man, in particular:
    • Article XXVI, due process of law in criminal matters
    • Article XVII, right to a fair trial
    • Article XVII, right to recognition “as a person having rights and obligations, and to enjoy the basic civil rights,”
    • Article V, right to protection of honor, personal reputation, and private and family life,
    • Article XXIII, right to own property,
    • Article IV, right to freedom of expression, and
    • Article XXI, right of assembly.
  3. Appropriate remedies, “including, inter alia, reconsideration, by an impartial tribunal, of the legitimacy of the use of civil RICO procedures in Mr. Donziger’s case and the substance of the underlying claims against him; a public acknowledgment of violation and apology; the taking of appropriate steps to sanction unethical conduct by Chevron, Gibson Dunn, and other entities involved in the presentation of false evidence in the RICO case; the taking of measures sufficient to protect Mr. Donziger’s property and livelihood; the issuance of appropriate compensation for Mr. Donziger; and the establishment of an independent public body to investigate the broader threats posed by the use of civil RICO and other litigation by corporations against human rights defenders.

The United States is, of course, a member of the Organization of American States, and is therefore within the Commission’s jurisdiction. On the other hand, because the United States has not ratified the American Convention on Human Rights, the Commission’s decisions are not binding on the US, but are treated as advisory. So I think it unlikely that Donziger expects the Commission will or could afford him the relief he’s seeking.

Looking at the big picture: the petition is a retelling of the story from Donziger’s point of view, much of which I’ve recounted here before. I want to focus on two noteworthy aspects: first, the emphasis on the great disparity in resources between Chevron and Donziger; and second, the use of Guerra’s testimony in the RICO trial.

Donziger is absolutely right to say that he was outgunned, outspent, and outlawyered in the RICO case. And I think there is an issue here of concern. In a typical mass tort case or class action, the plaintiffs, even if individually impecunious, are not outgunned, because we have a vigorous plaintiffs’ bar that works on a contingent fee basis, with enough capital and staying power to go up against the biggest adversaries. Indeed, in a class action or multi-district litigation, law firms can compete against each other to persuade the court of their fitness to handle the case. But because Donziger was a defendant rather than a plaintiff, there was no incentive for such a firm to represent him, and he lacked the capacity to pay one at ordinary commercial rates (as most anyone would). There was, frankly, a lot of bad lawyering on Donziger’s behalf in the case, but there’s no question in my mind that that was in part a function of Donziger’s inability to hire a big firm to go up against Chevron. On the other hand, suppose that instead of the bringing its claim against the Law Offices of Steven Donziger, Chevron had brought the RICO claim against a major international law firm. Such a firm would have been much better able to defend the case. So I see a real issue having to do with sole practitioners or small-firm practitioners taking on multi-billion dollar litigation when their opponents can in turn bring claims against them personally. But I really am not sure it is a good idea for small-firm practitioners to take on such cases, or at least to take the lead on such cases, in any event. They lack the resources and manpower.

All of that said: is the disparity in resources, even if vast, itself an indication of a human rights violation? That seems very dubious to me. Can someone really say, “I have a human right to prevent someone who is suing me from prosecuting his case as vigorously as he chooses?” In many countries, this problem is dealt with, at least in part, by routine cost-shifting, so that the loser bears the winner’s attorney’s fees. The American Rule requires each party to bear its own costs. But I don’t see that the American Rule is itself a human rights violation. This is particularly so when the underlying case was itself a multi-billion dollar dispute. I don’t see that a lawyer bringing a claim for billions of dollars can justly complain about the legal firepower directed back at him when there are colorable claims of fraud to be litigated.

I’ve already given my views on Judge Guerra—he is not a credible person, and his testimony does not seem worthy of belief, even if what he says happens to be true (if a confirmed liar tells you the truth, you aren’t likely to credit what he says despite its truth). But that said, two tribunals have now heard his testimony in person and accepted it as true, even though they knew that Chevron had paid Guerra’s living expenses. I’m not sure what the claim is here. Is the claim that it was a violation of Donziger’s human rights to allow the testimony to be presented? Is the claim that it was a violation of Donziger’s human rights to credit the testimony? Again, both claims seem dubious to me. All persons are competent to testify, with very, very limited exceptions. The payments go to the weight of the evidence. And if Judge Kaplan was wrong to believe Guerra, then Donziger should have appealed from the findings of fact. Of course, he would have faced a high and probably insurmountable barrier to success: the “clear error” standard of review. But even if there were no issue about exhaustion of remedies, it’s hard to see an erroneous weighing of the evidence as a human rights violation. And much of the rest of what Donziger has to say depends on disbelieving Guerra. For if Donziger really did bribe judges, etc., then it’s hard to see him as the victim of a human rights violation on account of the presentation of Guerra’s evidence, right? (I might point out here that the petition focuses significantly on Guerra without mentioning the other main example of fraud that underlay Judge Kaplan’s judgment, the supposedly-independent-but-in-fact-not-independent-at-all Cabrera report). This is the reason why I have suggested that the New York bar authorities were right to act in the disciplinary proceeding against Donziger without an evidentiary hearing. The facts (or as I said in the prior post, the facts′) had already had been found. The facts′ may or may not be the true facts, but they are what the court has found, and they can’t really be relitigated.

Zooming in on some details: I think the best substantive claim is that Donziger’s advocacy was itself treated as a predicate of the RICO violation. In particular, Donziger’s petition focuses on the use of inflated damages figures, which formed part of Judge Kaplan’s reasoning. On the one hand, courts can of course punish lawyers who make claims that are not “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law,” or who make factual contentions that do not have “evidentiary support.” (E.g., FRCP 11). Rule 11 does not apply in Ecuadoran proceedings: perhaps there is an analog. But regardless, it’s problematic to impose liability on lawyers for making claims that turn out to be wrong, because it is hard to draw the line between the merely erroneous and the wrongful; and because we don’t want to chill marginal claims. Treating overly exuberant advocacy as part of a RICO violation raises these issues even more starkly. I can’t really tell whether Donziger has made out a human rights violation claim here, but his argument has some oomph. Other points, not so much. For example, Donziger argues that the judge denied him a jury, but although he suggests that the case was somehow quasi-criminal, of course it was not a criminal case; and while he correctly quotes the Seventh Amendment to the extent it creates a right to trial by jury “where the value in controversy exceeds twenty dollars,” he fails to mention the part of the Amendment that provides that the right to a jury arises only “in suits at common law,” not in suits in equity. There was no right to a trial by jury on the claims that were tried, and while Donziger complains that Chevron dropped its common-law claims before trial, it’s hard to see that as wrongful rather than procedurally clever. And just because a case arises in equity rather than at law, the court may still award money as part of its judgment, if permitted by equity, as any trustee sued for breach of trust can tell you.

In short: I don’t expect the petition to provide Donziger with meaningful relief, and I suspect Donziger doesn’t either. It is, however, a good restatement of his themes.