By Adam Klasfeld, Courthouse News Service
25 November 2013
New York, NY – For his role in securing a roughly $9.5 billion judgment for environmental devastation in Ecuador, attorney Steven Donziger has been branded a "racketeer" by Chevron, pilloried in the press, and saddled with allegations that could sap his finances and stain his professional reputation. So, what makes him so calm, cheerful and confident that he will have the last laugh?
For nearly three years, Chevron has cast Donziger as the central character of a tangled and complicated civil case involving bribery, blackmail, ghostwriting and extortion, but it never called him as an adverse witness to answer those claims during its trial against him this past month.
Instead, Donziger took the stand in his own defense last week.
"I had to prove to them that they were not going to bully me or intimidate me because I do believe that they bullied and intimidated everyone who came in to testify," he recently said of the decision, speaking in an interview at the restaurant Serafina near his Upper West Side apartment.
When he first released his witness statement, Donziger invited reporters inside his "war room" - a two-floor loft in Tribeca packed with more than a dozen lawyers, publicists and volunteers working on his case. This conference announced the filing of Donziger's lengthy witness statement that started off by challenging the legitimacy of the proceeding, attacking the judge as biased and reciting the scientific evidence that he says supports the environmental verdict against Chevron.
In his point-by-point refutation of the allegations against him, he owned up only to "inconsequential" errors in his approach to the Ecuadorean litigation.
When leaked an early draft of the document, The New York Times summed up his 61 pages of defiance under the headline, "Lawyer Concedes Mistakes in Chevron Case," illustrating how hard it has been for Donziger to receive even-handed treatment in the press recently.
As the first reporter to trickle in to the war room statement, I was invited to sit next to Donziger at a roundtable near the front entrance.
He quickly cracked an impish smile and asked, "How does it feel to be sitting a few feet away from the most maligned lawyer in America?"
Breaking into uproarious laughter, the 6-foot-3 lawyer raised his lengthy arm to give me a fist bump.
Donziger's unguarded humor has cost him in Chevron's discovery motions and public relations campaigns. The oil company claims to have found damning admissions of guilt in the lawyer's cheeky pronouncements that he could have been a "propagandist" and a comparison of himself he once made to Fidel Castro. This history made Donziger understandably reluctant at first to talk about personal aspects of his life during our first off-the-record interview, but he agreed to share these details without such restrictions at Serafina.
"Despite the impression Chevron tries to leave, I never really pursued work for money," he emphasized. "That said, I obviously stand to gain a lot of money if we move forward to recovery, but that's never been the motivating factor."
Born in Jacksonville, Fla., to a small businessman and a local newspaper editor, Donziger's inspiration for pursuing the law came from his late maternal grandfather: Aaron E. Koota, a former prosecutor turned judge with the Brooklyn Supreme Court. Donziger never stepped foot in Koota's courtroom but he still speaks of his grandfather in the reverential tones of a young boy awed by the elected official in his family.
"He clearly was a public servant," Donziger said. "He wasn't a businessman trying to make as much money as he could."
Like most childhood memories, Donziger's thoughts about his grandfather were not highly detailed or concrete. He had trouble recounting any of his grandfather's cases or his legal philosophy, but his face lit up as he spoke of the long letters they exchanged from across the country. His grandfather's highest praise would be that Donziger wrote a "crackerjack letter."
Only after Koota's death did Donziger learn from a magazine article that his grandfather had a reputation for his tough "law-and-order" philosophy that made him the bane of civil libertarians. The New York Times reported in its obituary that critics accused Koota of "insensitivity to the rights of the accused." His grandson Donziger, by contrast, would later advocate primarily for alleged juvenile offenders in D.C. Public Defender's office, where he says he handled about 40 cases.
From there, Donziger moved on to the Alexandria, Va.-based nonprofit National Justice Commission where he edited "The Real War on Crime." The 1996 book excoriated "tough on crime" policies as wasting billions of dollars and needlessly filling the nation's prisons.
Koota's legacy and example is also ironic considering that, as a prosecutor, he worked for the rackets division. The New York Times listed his greatest accomplishment as helping to uncover a multimillion-dollar gambling ring leading to the indictment of 188 police officers and gamblers, of whom 150 were convicted. In other cases, however, Koota's critics alleged that he prematurely aired criminal investigations in the press before he had enough evidence to bring a case.
Donziger had his first brush with the case that would so define his career while studying at Harvard Law alongside the son of the Cristobal Bonifaz, an Ecuadorean lawyer who filed the first iteration of the lawsuit over oil pollution in the Amazon.
At the time, Chevron had not yet acquired Texaco, which drilled in the rainforests of Ecuador between 1972 and 1992. Bonifaz represented dozens of indigenous and farmer residents there, led by Maria Aguinda, suing Texaco in the Southern District of New York in a 1993 class action on behalf of more than 30,000 people they called the Afectados, Spanish for the "Affected Ones." They claimed that Texaco corrupted the environment and endangered public health by dumping more than 16 billion gallons of oil in the rainforest.
This case of Aguinda v. Texaco intrigued Donziger because of his longstanding interest in Latin American politics.
Before he entered law school, Donziger spent roughly five years as United Press International's freelance reporter with datelines in El Salvador, Costa Rica, Mexico and Nicaragua, where he spent the bulk of his time as a journalist. In fact, Donziger's distinctive coverage of the Nicaraguan Revolution caught the attention of the Ryerson Review of Journalism, a Canadian media ethics publication. For this publication, Donziger's extended quotation of Sandinista leader Daniel Ortega provided the "first opportunity readers have had to consider the issues involved" beyond the U.S. narrative.
As a law student, Donziger volunteered on behalf of Cuban refugees known as marielitos, named after the harbor where they were boatlifted before being detained in U.S. prisons pending deportation. A Los Angeles Times article described Donziger's work mediating prison riots and quoted him recruiting University of Southern California students to his cause with promises that, "You can make a difference."
Speaking of that recently, Donziger remarked, "I always wanted to use my advocacy for people who would otherwise not gain access to legal talent because of a lack of money."
In the early stages of the Aguinda lawsuit, Donziger said he initially assumed a "very minor role" assisting Bonifaz as he simultaneously worked as a public defender in Washington. He took a more prominent role in the case around 2003 as Chevron, fresh from acquiring Texaco, succeeded in moving the case to the provincial court in Lago Agio, Ecuador. Donziger said that the legal team in Ecuador needed a bilingual American lawyer to help them compete with Chevron's outsized power and influence.
Today, Donziger insists that he served at the "pleasure" of his Ecuadorean co-counsel, but he appeared at the time to be the public face of the trial. His public relations campaign included political lobbying in the United States and Ecuador, currying celebrity support from the likes of Sting, and finding financial backers to bankroll the lawsuit in exchange for a portion of a potential judgment. Donziger also brought the case to the attention of "60 Minutes," Vanity Fair and documentary filmmaker Joseph Berlinger.
Chevron used subpoenaed outtakes from Berlinger's film on the case, "Crude," to try and discredit Donziger with snippets of him appearing to characterize the trial in Ecuador as a "political battle being played out through a legal case." He noted in his witness statement that Chevron cut off his remarks just before he added "and all the evidence is in," which he contends is a reference to scientific studies from the 1990s holding Texaco responsible for environment disaster in Ecuador.
"I mean the judge can easily find that we can win this case based on what's in right now, what Texaco admitted to," Donziger said in the unedited clip.
During opening remarks of Chevron's racketeering trial, his lawyer Richard Friedman likened Donziger's political maneuvering in the case to former Supreme Court Justice Thurgood Marshall's tactics as a civil rights lawyer. Donziger said it embarrassed him to be mentioned in the same sentence as "Mr. Civil Rights," but that he did look upon Marshall's example as an inspiration. Marshall's litigation tactics, which were detailed in the recent Pulitzer Prize-winning biography "The Devil in the Grove," were "very similar" to those used in the Ecuadorean battle against Chevron, he said.
"Justice in the South during the time of segregation virtually did not exist," Donziger said. "You had to go fight for a fair trial. You couldn't just walk into court expecting to beat them. The juries were white. The judges were white. It was the same thing in Ecuador. Indigenous people were treated like African Americans in this country."
In fact, Donziger said that de facto segregation existed in Ecuador to such an extent that some indigenous members of the Huaorani nation did not even know they had the right to attend the trial when it opened on Oct. 21, 2003.
He credits one of the most distinctive photos from his time in Ecuador as one first published in New York Magazine, depicting him speaking to a half-nude Huaorani woman as he helped to rally the stakeholders into the Lago Agrio court.
Donziger described that first day of trial as one of his "highest moments" in the case, ranking even higher than winning the case in Ecuador because Chevron had filed its lawsuit against him in New York days earlier, he said.
"When you're a plaintiff's lawyer, it's a challenge to get a trial," he said.
Indeed, Chevron argued that their adversaries had no right to sue them for Texaco's drilling because the Ecuadorean government settled those claims in a 1995 settlement. It continues to raise this point at an international arbitration tribunal in The Hague, where Ecuador contends that it is being asked to abandon its constitutional guarantee granting its citizens a private right of action.
Donziger called it "fundamentally a project to deprive victims of access to justice. That's what their arguments are about."
Chevron has also forced Donziger to defend his solicitation of millions of dollars from financial investors to sustain the litigation. After Donziger's recent testimony revealed a $21 million war chest to litigate against Chevron, his lawyer called that figure "a drop in the bucket" compared to its opponent's largesse.
Donziger said this is what he referred to in his journal as his "new paradigm, of not only a case but how to do a case."
"If you're the Chamber of Commerce, all you see is greedy plaintiffs lawyers, but what's behind it is a paradigm of human rights justice that uses the economic model of contingent-fee plaintiffs' lawyering in a new and innovative way on behalf of people who would never have any hope but for this model," Donziger said. "That's what's so innovative. There is an economic model behind the human rights case that is unprecedented."
Critics meanwhile argue that the practice of offering a portion of a potential judgment in return for an investment wades into murky waters of legal ethics. Burford Capital's chief executive Chris Bogart bolstered these fears when he signed up as a witness for Chevron and claimed that Donziger misled him about the case in Ecuador. Julio Gomez, an attorney for two of the original Lago Agrio plaintiffs, contended in opening statements that the Chevron secured this and other witnesses by threat of "economic annihilation."
Donziger argues that his paradigm represents a "dangerous" model for Chevron and other companies because it removes a hurdle standing between victims and redress for "legacy environmental problems around the world," in such countries as Peru and Nigeria.
"When you step up years later as the people of Ecuador have done, the companies feel victimized because they think, 'Wait a second! My contract never said this could happen.' So they actually feel victimized by people using their own Constitution to seek compensation!" Donziger exclaimed. "They experience that as a wrong to them. I really think that is quite extraordinary."
"Victim," in fact, is the very word that Chevron's top lawyer Randy Mastro used to describe the oil company in a phone interview.
A fitting adversary for Donziger, Mastro works for Gibson, Dunn & Crutcher, a firm that filed similar claims of lack of due process and judicial corruption in the case of Sanchez Osario et al v. Dole Food Company et al., a case Donziger cites as the genesis of its "turning tables" strategy.
Shorter than Donziger, Mastro sports carefully groomed facial hair where his opponent is clean-shaven. Mastro speaks in a rapid-fire voice peppered with gravel and indignation that likely served him well in his former role as a mob prosecutor.
Mastro detailed his experiences in charge of the prosecution team that filed civil racketeering charges against the Teamsters in the Southern District of New York, leading to the issuance of a consent decree that forced the union to clean up shop. He said that he also played a role in ridding the Fulton Fish Market and Little Italy's San Gennero's festival of La Cosa Nostra, favors for which he says he received death threats.
Set against Chevron's racketeering claims against Donziger, Mastro's résumé helped cultivate a media-generated rivalry between the two men. Donziger wrote in his original witness statement that he awaited "the esteemed Mr. Mastro's highly anticipated cross-examination," and Mastro ended his questioning with the rhetorical flourish, "Mr. Donziger, I have nothing further for you."
Insisting their courtroom matchup is "not personal," Mastro said he was driven by "seeing that justice is done."
"I give Chevron a tremendous amount of credit for the strong stand it's taken," he said. "Instead of being shaken down, it stood up."
Donziger testified in his witness statement that is not quite true because Chevron sat down at the settlement table three times to discuss a resolution of the case, and these talks undermined the company's claim to have been defrauded.
When asked about this, Mastro replied: "I'm not going to comment on that because lawyers are not supposed to comment on whether or not settlement talks occurred."
Before hanging up to work on closing arguments in what he called the "shocking, sordid tale" of this case, Mastro nevertheless disputed that Donziger's account represented an "accurate recitation" of the events. The closing remarks are expected as early as Tuesday.
To be sure, Chevron collected some ammunition from its years-long probe into the confidential files of Donziger and his colleagues, but the Ecuadoreans claim that these materials were taken out of context. Mastro recently highlighted a once-privileged email to Donziger that refers to an Ecuadorean judge as a "cook" and a scientific expert as a "waiter," or alternately, the "Waoa." Chevron dubs these as "code words," but Donziger downplayed them as humorous "nicknames."
The author of this email was Pablo Fajardo, the lead attorney in Ecuador who battled Chevron in court.
Fajardo confirmed in an email that the "Waoa" in his message indeed referred to Richard Cabrera, a court-appointed expert who looms as a controversial figure in the case. He said that he gave Cabrera this name, which is the singular form of Huaorani, to liken him to the characteristics of this tribe.
"Cabrera is a strong man, capable of resisting all of the attacks, offenses, insults, persecutions, and a warrior who does his work honestly," Fajardo wrote from Ecuador in Spanish.
Donziger and his associates have now conceded that Cabrera served as their paid expert whose report was authored in part by a Colorado-based firm that they personally retained: Stratus Consulting, who were originally scheduled to testify for their former adversaries at Chevron but never ultimately took the stand.
Whereas Chevron calls this an admission of ghostwriting, the Ecuadoreans attribute this to a cultural difference between its legal system and the one in the United States. They contend that Ecuadorean law permits court-appointed expert to serve and be paid by one side while exercising independent judgment, and Chevron refused to participate in this process. They also note that the final judgment, signed by Judge Nicolas Zambrano, expressly disavowed Cabrera's report and stated that it relied upon Chevron's data.
Chevron alleges that this verdict was also ghostwritten by Judge Alberto Guerra, in exchange for bribes that he claims Donziger authorized.
Donziger emphatically denied that charge on the witness stand. "I would never do that," he said. "Whatever money we had would not be used to bribe a judge."
Guerra has acknowledged accepting tens of thousands of dollars in cash from a Chevron lawyer in a suitcase and entering into a contract with the company that includes at least $326,000, the services of an immigration lawyer and a car.
Donziger said this should have been enough for Guerra's allegations to be "laughed out of federal court," but he said he was uncertain that it would happen in the court of U.S. District Judge Lewis Kaplan, who is hearing the case without a jury. Donziger and his colleagues have repeatedly accused Kaplan of bias against them and have indicated that the current case in New York can largely serve as a preview for an appellate battle to follow.
The 2nd Circuit threw out two of Kaplan's decisions related to an earlier version of Chevron's lawsuit, but they rejected attempts to boot him off the case. Appellate court arguments are expected to center on whether any New York judge has jurisdiction to hear a case over whether an Ecuadorean judgment is collectible outside the United States. Chevron wants Kaplan's verdict to fend off actions against their assets in Canada, Brazil and Argentina.
Meanwhile, Donziger said he relied on family to keep his spirits up. The lawyer often sports two colorful, rubber bracelets that he says his son made him. He mentioned that he took up yoga months after Chevron filed its claims against him and that he since worked on his practice in more than 15 cities where he has had to travel for the case.
Donziger said he thinks on his time in Nicaragua to keep his legal troubles in perspective, recounting a time when he asked workers about freshly dug graves with no apparent corpses to fill them.
"Oh, there's a war," Donziger recalled them telling him. "We're going to have to use these graves." He said he lived a part of his time there with a family from the provincial town of Esteli, in a house with a "beautifully manicured dirt floor." His voice turned uncharacteristically somber, as he added that he was not being ironic about this phrasing.
"I have that experience from being in other places seeing what real sacrifice is like, and it's not what I'm going through," he said. "That's not to downplay what I am going through because, believe me, it's stressful, but I have perspective. Compared to other times and other places, it's much worse than this."