Lawyers at Heart of Chevron-Ecuador|Dispute Finally Face Off in Court

     MANHATTAN (CN) – Two larger-than-life personalities on either side of the litigation over racketeering and oil spills in the Amazon clashed in a New York court Monday.
     Taking the stand was Steven Donziger, a towering figure at 6-foot-3, who paints himself and his colleagues as targets of the “most well-funded corporate retaliation campaign in history,” in his 63-page witness statement.
     Although he never argued in an Ecuadorean court, Donziger is widely seen as the driving force behind a lawsuit there that resulted in a $9 billion judgment against Chevron. Donziger’s advocacy for his Ecuadorean clients included political lobbying, finding financial backers to support the litigation, and media outreach to outlets like “60 Minutes,” Vanity Fair and filmmaker Joseph Berlinger, who taped the litigation for the controversial documentary “Crude.”
     Donziger also landed celebrity support from the likes of Sting, who attended Monday’s court hearing wearing a gray T-shirt seated next to his wife, Trudie Styler, a British actress who is also a prominent supporter of the Ecuadoreans.
     “It’s actually a sideshow,” Sting told Courthouse News minutes before questioning began, referring to Chevron’s allegations. “They’ll try to do anything but talk about the real issue.”
     Directly behind the rock star sat Chevron’s vice president and general counsel Hewitt Pate, in a business suit.
     For Donziger’s supporters, the real issue underlying the case against Chevron in Ecuador is the dumping of billions of gallons of oil in the rainforest by its predecessor, Texaco, which drilled there between 1972 and 1992.
     Chevron spokesman Morgan Crinklaw dismissed the high-profile backing as an “unfortunate” sign that “Donziger continues to mislead well intentioned people.”
     Randy Mastro, who prosecuted mob cases before representing Chevron for the Gibson, Dunn and Crutcher law firm, contends that the case is about an elaborate fraud on an Ecuadorean court by corrupt judges and ghostwritten scientific reports. He took particular aim at Donziger, whom he has labeled a “criminal” during the course of his civil suit.
     Days before the Ecuadorean court ruled against Chevron in February 2011, the oil giant filed a federal RICO suit against Donziger and his associates in the courtroom of U.S. District Judge Lewis Kaplan, who is hearing the case without a jury.
     Donziger’s statement features a blanket denial of the allegations against him, a lengthy recitation of the evidence that Texaco sullied the rainforest, and a condemnation of the New York trial.
     The first sentence of the document states: “I challenge at the most fundamental level the legitimacy of this proceeding and the appropriateness of the court’s decision to take this case to trial despite the profound foundational problems we have identified in briefing.”
     The case, he has long argued, should never have gone to New York because the Ecuadoreans never sought to collect the judgment there. They have filed collections actions in Canada, Brazil and Argentina instead, and Chevron hopes to use a judgment from Kaplan to fight off those actions.
     Donziger’s statement, it seemed, had been written more for an appellate court than the one immediately hearing the case.
     Judge Kaplan, for example, had made clear long before trial that he would not relitigate the evidence of pollution in Ecuador, an issue he determined to be irrelevant to whether Chevron’s opponents committed fraud to secure the judgment.
     Chevron already has moved to strike a large portion of Donziger’s statement on those grounds.
     Over the past two years, Donziger and his lawyers have repeatedly accused Kaplan of bias in and outside of court, and have not been shy in predicting that he will rule against them and that they will appeal on jurisdictional grounds. All but two of the indigenous Ecuadoreans named in Chevron’s lawsuit boycotted the New York case.
     One of those men, Javier Piaguaje, testified directly before Donziger.
     Dressed in a bright red tunic lined with bell-shaped tassels and a wreath-like headdress of yellow and orange feathers on his shaved head, Piaguaje came to the stand as the president of the Siekopai, whose name means “multicolored people.” The stout 41-year-old represented his community in the Asemblea de Afectados por Texaco, a group of indigenous leaders created in response to the lawsuit against Chevron in Lago Agrio. He described the workings of that group in his testimony, but he seemed unfamiliar with the lawsuit’s financing.
     Under cross-examination, Piaguaje said he did not know that an offshore trust had been created to collect the judgment, or what the lawyers representing his interests stood to gain from a potential judgment.
     Piaguaje’s unfamiliarity with these mechanics presaged the first round of the questioning of Donziger – exploring to what extent he called the shots over the Ecuadorean litigation.
     Donziger now plays down his role in securing the judgment against Chevron, a feat he describes in his statement as the “profound historical accomplishment” of his clients. His statement characterizes Ecuadorean attorney Pablo Fajardo as the “lead lawyer” of the case, at whose “pleasure” he says he served.
     Mastro tried to undermine that description in a combative and sarcastic cross-examination that began late in the afternoon.
     “We meet again, Mr. Donziger,” the pinstripe-suited Chevron attorney said. “Good afternoon.”
     Mastro asked whether Fajardo referred to Donziger as the “cabeza,” the Spanish word for head.
     “I don’t know,” Donziger replied. “He certainly hasn’t in years.”
     Mastro asked about another honorific, “Commander in Chief.”
     Donziger replied that Fajardo actually used the term comandante, the Spanish equivalent. “Pablo had a lot of nicknames for me,” he said, adding that this one was a “term of affection.”
     Mastro suggested that Donziger referred to Fajardo as “My young field lawyer in Lago.”
     That dialogue seemed to highlight the longstanding positions of the two opposing sides: with Chevron emphasizing bluster it attributed to Donziger, who typically insists his words have been taken out of context to serve a misleading narrative of fraud.
     In his statement, Donziger said that Chevron did the same thing with “Crude” footage, “professionally video-editing the outtakes to remove, in a way that is barely noticeable to the viewer, my references to our fears of Chevron’s corruption, and submitting these edited outtakes to the court as true and correct copies.”
     “This is tampering with evidence, pure and simple,” he wrote in the statement.
     Donziger called it “roughly correct” that he earned up to seven times more in salary than Fajardo and stood to gain three times the contingency fee, before explaining that cost of living factor into that equation.
     This explanation was stricken from the record as unresponsive to the question.
     Referring to Fajardo, Mastro said, “He must be a very generous boss, Mr. Donziger.”
     Rebuking the nonquestion, Judge Kaplan said, “Let’s cut it out.”
     “Sorry, Your Honor,” Mastro replied.
     Mastro displayed a series of invoices and expense forms into evidence as he questioned Donziger’s statement that he operated under constant financial “constraint” and “limitation.” One of the forms showed a more than $21 million budget between 2007 and 2013.
     Chevron has been trying to get its hands on a portion of Donziger’s financial documents held by an accountant.
     Donziger’s attorney, Richard Friedman, called those expenses a “drop in the bucket” in terms of the costs of litigating against Chevron, even if a much smaller budget would sustain less complicated litigation.
     “It’s like calling someone tall or short,” Friedman said. “Compared to what?”
     The topic is likely to resurface as Donziger’s questioning continues on Tuesday.

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