The worst thing that can happen to a lawyer has happened to Steven Donziger, the lead American lawyer for the Lago Agrio plaintiffs. The New York Supreme Court, Appellate Division, has indefinitely suspended him from the practice of law. The decision was short and to the point: the court gave preclusive effect to the facts that Judge Kaplan found in the RICO case, and there can really be no dispute that if you take those facts as given, Donziger deserves what he has received.
Of course, that’s really the question. Should the court have given Judge Kaplan’s decision preclusive effect? Dozniger has said that the facts that Judge Kaplan found are still in dispute. There is a sense in which I’m sure this is true, and I’ve suggested that Judge Kaplan may have gotten one aspect of his findings—the finding that the Lago Agrio judgment was ghostwritten—wrong. But in the sense that matters, the facts that Judge Kaplan found are not in dispute. The Court of Appeals affirmed his judgment. The Supreme Court denied a petition for certiorari. Donziger has not brought a motion to set aside the judgment. The New York court described Judge Kaplan’s findings as “uncontroverted,” and this is correct, too—Donziger says he rejects them, but he did not appeal from them.
I suggested previously that perhaps the New York disciplinary authorities should wait for the dust to settle before acting, but that’s not to say that a court shouldn’t apply the ordinary rules of preclusion once the disciplinary body brings the case to the court, and in any case I think that whatever the merits of Donziger’s view on the ghostwriting claim, he has much weaker chances on the other main factual points, for example the issues concerning the supposedly independent Cabrera report.
I like Donziger. I’ve spoken with him many times. He strikes me as someone you’d like to have a beer with, and I think he set out to do something good for the world. But what the last few years have shown very clearly is that he is unwilling to accept that a final judgment really is final.
If I may offer one more observation, I think Donziger’s professional downfall is due in part to conception of the lawyer. Some of the Crude outtakes, and indeed, the fact that Donziger thought bringing a film crew with him to Ecuador was a good idea, suggest to me that for Donziger, the lawyer is a hero. Maybe that works for some people, but in my own experience, which is longer now than I would like to admit, effective lawyers conceive of themselves as careful craftsmen. And effective lawyers tend to succeed no matter the “curb appeal” of their cases by their attention to detail: the facts, the rules of procedure, the rules of evidence, the substantive law. You wouldn’t make a video agonizing about how badly you feel about having to go “tell the judge what time it is” unless you see yourself as the hero of the story. You don’t make an Aaron Sorkin-style speech about how “facts are created” unless you’re the hero.
Yesterday the Ecuadoran Constitutional Court announced its decision rejecting Chevron’s last appeal from the Lago Agrio judgment. So the day was surely bittersweet for Donziger. Donziger has issued a statement promising an appeal, but unless I am missing something, and unless there are new developments, I think the chances of success are low.
Let me just close with a global overview of the Lago Agrio case as far as I understand it:
- In Ecuador, the judgment now seems to be final; but Chevron has no assets in Ecuador to which the plaintiffs can look to satisfy the judgment.
- In Canada, the LAPs have sought leave to appeal to the Supreme Court from an intermediate appellate decision holding that they could not look to the assets of Chevron’s indirect Canadian subsidiary in order to satisfy the judgment against Chevron Corp. Regardless of the outcome, I think it is likely that the LAPs will seek to obtain recognition in Canada of the judgment against Chevron Corp., which will raise all kinds of interesting procedural issues. But if, as I suspect, Chevron Corp. really only has assets in the United States, it is unclear what this will get them, even if they intend a judgment arbitrage strategy.
- In Argentina and Brazil, the courts have, as I understand it, refused recognition of the Ecuadoran judgment.
- In the United States, in addition to the attorney disciplinary proceedings against Donziger, Chevron is seeking discovery in aid of the $800,000 judgment it holds against Donziger, which Donziger has appealed but which is currently enforceable because Donziger has not filed a supersedeas bond. Chevron is also seeking to hold Donziger in contempt of the injunctive aspects of the final judgment, and the court held an evidentiary hearing in late June. I will report on the results. And let me whet your appetite by telling you that I have a couple of Lago Agrio-related FOIA requests pending that will, I hope, lead to some interesting stuff in the future.