Steven Donziger has sought leave to appeal the decision of the Appellate Division holding that Judge Kaplan’s findings that he had corrupted the Ecuadoran judicial process in the Lago Agrio case were preclusive and could not be relitigated in Donziger’s bar discipline case.
Donziger’s submission points out that the facts were found “by a single federal judge without a jury” (though the bar discipline case also has no jury) “in a civil process initiated and dominated by the corporate defendant.” It argues that Donziger’s claim against the routine application of collateral estoppel “implicates due process, New York State sovereignty, the honor of the bar of New York, and the concept of a privilege in practicing law on behalf of indigenous people that exceeds a mere property interest and draws strength from the liberty interests of respondent’s former clients.”
“Implicates due process” is not a strong way to put it, though I think a due process claim is at least sensible, because it is clear that accused lawyer is entitled to due process. I think, though, that the Appellate Division’s decision was correct for the reasons I have given in prior posts. There does not seem to be an issue about a difference in the burden of proof in the two cases, and I do not see why the absence of a jury matters, since even if there were no preclusion, Donziger’s fate at the bar would not be decided by a jury. The facts that Judge Kaplan found may or may not be the true facts. (Some of them clearly are, some of them, as I have argued, are less clear). But they are the facts for purposes of the law. Here is how I put it earlier in my post on Donziger’s “facts are created” line:
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.