In a comment to my post on the Second Circuit’s decision in Chevron v. Donziger, Doug Cassel raises the possibility of a settlement: “The best way forward continues to be for all parties to pursue a settlement in good faith.” Now, I have no idea what is going on behind the scenes. But how should we think about the possibility of a settlement in the Lago Agrio case? Continue reading Lago Agrio: Settlement Prospects→
One of my favorite characters from the Lago Agrio story is David Russell, the purveyor of the SWAG, the “scientific wild-assed guess” about the cost of remediation that launched a thousand lawyers. I’ve written a couple of times about him. First, I reviewed his testimony on direct examination in the RICO trial, and second, I noted references to his offer to his consult for Chevron after he and Donziger fell out. Russell has collected his thoughts about his involvement in the saga in an essay he’s titled Jungle Fumble: A Brief History of and Inside Look at the Ecuador Lawsuit against Texaco/Chevron. Others have seen versions of this, but I believe I am linking to it here for the first time. It has historical interest, I think, as a first-person account of a key witness. The writing is much more engaging, though less lawyerly, than the witness statement Russell and Chevron’s lawyers prepared in advance of the trial. Continue reading Lago Agrio: David Russell Speaks→
Steven Donziger, the Lago Agrio plaintiffs’ US lawyer, was caught on tape telling members of his litigation team: “Facts do not exist, facts are created.” What does that mean? There’s the nefarious interpretation of course—lawyers should make up the facts they need to win a case, without regard to what’s true. Everyone should reject that idea. But there’s another interpretation: the facts of a case are what the finder of fact finds that they are. Everyone knows that judges and juries can make mistakes. But when a court renders a judgment, it is based on the facts that the fact-finder found, 1 and those findings of fact, within limits, are conclusive even if mistaken. This truism might go a long way toward explaining the outcome of the Second Circuit’s long-awaited decision in Chevron v. Donziger, which affirmed Judge Kaplan’s judgment in favor of Chevron on all points.