Chevron advocate and friend-of-Letters-Blogatory Doug Cassel is back with his take on the judgment ghostwriting issue. I’ll respond to some of his points in the comments.
In a January 7 post Ted Folkman makes an ambitious—albeit “tentative”—effort to assess the voluminous evidence of fraud committed by Steven Donziger and certain other plaintiffs’ attorneys in the Ecuadorian proceedings in the Lago Agrio case. Ted focuses on (1) plaintiffs’ ghostwriting of the report of the court’s supposedly independent and impartial expert on damages (Cabrera); (2) plaintiffs’ alleged bribing of the trial judge (Zambrano) and ghostwriting of the judgment; and (3) corruption of the Ecuadorian judiciary “as a whole.”
Ted finds “little or no question” about Donziger’s “dealings with Cabrera.” (The evidence shows that Donziger and certain of his colleagues bribed Cabrera, ghostwrote his report, and attempted to conceal their communications with him.) However, Ted concludes cautiously that “on balance, and given the burden of proof …, the better view is that Chevron hasn’t really proved” that the judgment, too, was ghostwritten. Finally, Ted argues that only if the Ecuadorian judicial system is “rotten through and through” can Chevron make its “strongest” case against enforcing the judgment.
My own review of the evidence and pleadings in Chevron’s RICO case against Donziger (and in Chevron’s related arbitration case against Ecuador) reaches somewhat different conclusions. Like Ted’s, mine are also necessarily tentative. Neither of us was present in court at the RICO trial. In contrast, the experienced federal judge who presided over the trial, Judge Lewis Kaplan, had an opportunity to observe the demeanor of the witnesses and thereby to assess their credibility. In addition, with the assistance of his law clerk, Judge Kaplan will have had far more time than Ted or I to pore over the mass of testimony and documents before he reaches his judgment. (Since final post-trial briefs are not currently due until January 21, we will probably not see his ruling before February, if then.)
Before turning to Ted’s main focus—whether the judgment was ghostwritten—I comment briefly on his other two issues.