I’ve just finished reading Paul Barrett’s new book, Law of the Jungle: the $19 billion Legal Battle Over Oil in the Rain Forest and the Lawyer Who’d Stop at Nothing to Win. Barrett’s book is about the Chevron/Ecuador saga, with a particular focus on Steven Donziger, the attorney that has represented the Ecuadorian villagers in their struggle to hold Texaco (now Chevron) accountable for the environmental destruction left behind by the company’s operations in the Ecuadorian Amazon.
In 2011, after nearly 20 years of litigation in the U.S. and Ecuador, an Ecuadorian court ordered Chevron to pay over $18 billion (later reduced to $8.65 billion) to remediate the environmental damage. Chevron, however, responded by filing a lawsuit in New York against the Ecuadorians and their lawyers, arguing that the attorneys had committed fraud and racketeering (under the RICO statute) in the Ecuadorian litigation. After a bench trial (heard by a single judge rather than a jury), in March 2014, the court issued a judgment in Chevron’s favor (“the RICO judgment”), finding that Donziger had obtained the Ecuadorian judgment by fraud and that the Ecuadorian judiciary as a whole was not impartial and its rulings need not be respected. Donziger and the Ecuadorians have appealed the RICO judgment to the Second Circuit Court of Appeals.
I’ll be up front about the fact that I am not an unbiased reviewer, although I’m going to do my best to be fair. As a new lawyer, some of my first litigation experience was representing the First Amendment rights of advocacy organizations and activists who had been the target of abusive discovery by Chevron in its battle against the Ecuadorian judgment. I also recently helped draft an amicus brief to the Second Circuit in support of Donziger and the Ecuadorians in their appeal of the RICO judgment.
I think it is fair to say that Barrett is also not unbiased when it comes to this case. Anyone who has read Barrett’s coverage of the RICO case knows how he feels about Donziger, and he has been vocal about his support for Chevron. Although he does discuss some of the sordid history of Texaco’s early operations in Ecuador and notes some of Chevron’s “dirty tricks”, the book is a lopsided read.
Given my familiarity with the case, I noted a number of factual misrepresentations and quotes (especially from the Crude outtakes) taken out of context – indeed many of the same misrepresentations and quotes were used by Chevron in the related discovery litigation and repeatedly refuted. But I want to focus on the bigger picture. (I will note, however, that Donziger has recently sent a “Notice of Defamation” letter to Barrett and the publishers, which alleges the book contains “improperly sourced and possibly plagiarized material, is replete with factual inaccuracies, describes events that did not occur, and in other ways promoted information known by Barrett to be false and defamatory.”)
The book is much more about Donziger than a comprehensive look at the legal battle. And I think Barrett’s almost singular focus on Donziger is unfortunate for a couple of reasons. (I frankly also found his detailed attention to Donziger to be a little weird, describing in great detail his physical appearance and purporting to know his most intimate emotional feelings based on reading excerpts from his journal, but at other times, based only on conversations with third persons.) Barrett’s scrutiny of Donziger stands in stark contrast to his discussion of Chevron’s conduct. Barrett has a lot of criticism for the ends-justify-the-means mentality he believes Donziger had, yet little criticism for the seemingly similar mentality of Chevron. Donziger is demonized in excruciating detail not only for his alleged misconduct in the legal case, but also the classes he attended, the articles he wrote, every fancy dinner he went to or nice hotel he stayed in, and even his relationships with his family. Chevron’s dirty conduct does not receive the same detailed treatment or critical analysis and what misconduct is discussed is treated as an unfortunate but perhaps justified response to Donziger’s tactics.
I think this singular focus on Donziger also came at the expense of attention to other key players – particularly some of the Ecuadorians – and pieces of the story that I was surprised to find totally absent from his book. A particularly glaring example is the subsequent Ecuadorian proceedings. Barrett spends a lot of time discussing the trial court proceedings in Ecuador, the corrupt trial court judges, and the alleged wrongdoing by the Ecuadorians’ lawyers during those proceedings. But the sole reference to the appellate proceedings I could find was this: “The plaintiffs had their judgment, which was promptly upheld on appeal in Ecuador. With various enhancements, the verdict grew to more than $19 billion.”
The trial court judgment was appealed to the Provincial Court of Justice of Sucumbíos and heard by three randomly selected intermediate appeals judges, who issued a modified judgment in January 2012 – nearly a year later. The judgment directed Chevron to pay $8.65 billion instead of $19 billion. Chevron made many of the same allegations of fraud and misconduct to this court as it made to the court in New York during the RICO trial and submitted 50,000 pages of new material attacking the trial judgment along with its 200 page brief. Because the Ecuadorian legal system is a civil law system, the appellate court engaged in de novo (or “first instance”) review of relevant portions of the trial record and legal issues and thus corrected or cured any factual or legal errors that may have been made by the trial judge in the prior proceeding. Significantly, Chevron has made no allegations of impropriety or misconduct against the appellate court judges, nor the Justices of the National Court of Ecuador, which subsequently affirmed the appellate court’s judgment in November 2013, during the RICO trial.
Burt Neuborne, the lawyer for the Ecuadorians in their appeal from the RICO judgment, has made a particularly compelling and comprehensive argument for why the Ecuadorian appellate judgment severed any link with the allegedly tainted trial court judgment, cured any defects in the lower court proceedings, and hence rendered any flaws in the trial court’s original judgment irrelevant.
By omitting discussion of critical pieces of the story, the book leaves the inaccurate impression that most of the factual and legal issues have been resolved. I’m not sure what Barrett’s ultimate message or takeaway is meant to be. The last chapter is particularly dissatisfying; Barrett digresses into a discussion of examples of Plaintiffs’ lawyers who crossed ethical lines and recent U.S. Supreme Court cases curtailing the ability of courts to hear transnational human rights cases and limiting class actions. I’m not sure what his point is other than to further criticize Donziger and try to secure his place in the plaintiffs’ lawyer hall of shame. Although suggesting Texaco could have done the “honorable thing” from the start, Barrett abruptly ends the book by shifting much of the blame and responsibility for cleaning up the Amazon to Petroecuador (the Ecuadorian oil company) and the Government of Ecuador. They certainly deserve their own share of the blame for the continuing plight of the Ecuadorians, but that doesn’t and shouldn’t vindicate Chevron.
Barrett’s book tells part of the story. But there is much more to tell and there is much more to come in this saga. Chevron may have obtained a weighty verdict against Donziger, but the Ecuadorians still have a weighty verdict against Chevron. In the U.S., there are a number of grounds on which the Second Circuit could reverse the RICO judgment decision in whole or in part. But regardless of what happens in the U.S., other courts have already been asked to weigh in on the Ecuadorian judgment, and they may not be as quick to write off the Ecuadorians and the entire Ecuadorian judicial system.