Law-Jungle-Billion-Battle-Nothing/dp/077043634X">Law of the Jungle: The $19 Billion Dollar Legal Battle Over Oil in the Rain Forest and the Lawyer Who’d Stop at Nothing to Win It
By Paul M. Barrett
(Crown, 304 pages)
As Eric Hoffer observed, “Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket.” In Law of the Jungle, Paul Barrett, an assistant managing editor and senior writer for Bloomberg Businessweek, tells the story of how a crusade to clean up oil pollution in the Amazonian jungle followed that inevitable trajectory, turning into a corrupt enterprise that appears to have failed to accomplish what it set out to do. That’s because the lawyer running the show, Steven Donziger, turned the case into a cause for which, as the subtitle has it, he stopped at nothing.
Nothing, not bullying judges, ex parte approaches, ghostwritten expert reports, and outright bribery, was out of bounds. As Barrett and Judge Lewis Kaplan of the federal court in New York conclude, all of those unethical tactics tainted Donziger’s $19 billion Ecuadorian judgment against Chevron.
It would have been challenging to obtain that judgment ethically. Donziger represented Amazonian natives who wanted the pollution cleaned up and claimed that their health problems were caused by oil pollution for which Chevron was responsible. Chevron is the corporate successor of Texaco, which was kicked out of Ecuador along with other foreign oil companies in 1993. Petroecuador took over, and it was responsible for some part of the problem. For its part, Texaco reached a deal with Ecuador to clean up 1/3 of the contaminated sites—it had 1/3 of the original deal—and Ecuador signed off on the cleanup. To do it right, Donziger would have had to show that Chevron was responsible for the pollution, and that the pollution, not other environmental factors, caused the health problems.
Instead, as Barrett details, Donziger blew through what others would have seen as stop or caution signals. He “[a]vidly” used an early $6 billion damages figure even after its author, who initially characterized it as a SWAG (scientific WAG), disavowed it as “wildly inaccurate” and said it shouldn’t be used. When testing of one well site and analysis by a team of five neutral experts did not support the plaintiffs’ claims, Donziger schemed to replace them with a single “neutral” expert which his team would select without Chevron’s knowledge or input after they made sure that he would “totally play ball.” The court appointed that nominally independent expert after Donziger’s team threatened the then-judge with a misconduct complaint. Donziger admitted that the judge wouldn’t have gone along “had we not really pushed him.” The team then insured that the expert would “totally play ball” by bribing him and writing his report. Finally, not content with wiring the substantive process, they bribed the judge and wrote the 188-page decision in their favor for him, which he dutifully issued.
More generally, Donziger turned the lawsuit into a self-aggrandizing cause. Barrett explains that Donziger came up with a “new business model,” one that “married hedge-fund financing and leftist politics.” In Donziger’s hands, that model involved viewing the Ecuadorian courts as entities to be bullied. At one point, he explained, “We have concluded that we need to do more, politically, to control the court, top pressure the court. We believe they make decisions based on who they fear the most, not based on what the laws should dictate.”
Similarly, facts were malleable. Donziger said, “I once worked for a lawyer who said something that I have never forgotten: ‘Facts do not exist. Facts are created.’ Ever since that day, I realized how the law works.” As Barrett observes, that “witticism might elicit nods in a Harvard seminar on the elusive nature of knowledge; from the mouth of a practicing lawyer, it suggested a willingness to manipulate evidence.” That suggestion was clearly borne out by Donziger’s practices.
He drew funding from trial lawyers, law school friends, and a litigation funding firm. The DC law firm of Patton Boggs also jumped in at the enforcement stage in exchange for a piece of the pie, an action that led to firm’s disappearance as an independent entity. Donziger’s lawsuit garnered support from celebrities like Sting and his wife Trudie Styler, and 60 Minutes, the New York Times, Vanity Fair, The New Yorker, and Bloomberg Businessweek ran stories. Last, but not least, a favorable documentary, Crude, was made and played at the Sundance Film Festival.
Donziger’s corrupt enterprise came to light for two reasons. First, stipendium peccati: the making of Crude included the filming of some of Donziger’s bullying and interactions between him and his team in which some these schemes were discussed. Those scenes did not appear in the Sundance version of Crude. Second, Chevron decided to go on offense and pursued discovery in the United States to generate testimony or documents that might be useful in a legal proceeding overseas. Judge Kaplan gave Chevron access to the outtakes from the documentary, outtakes that showed Donziger in all his glory. Chevron used what it learned as the basis for a civil racketeering lawsuit against Donziger and others involved.
As Barrett explains, Donziger lost sight of the fact that the laws of politics are not the laws that govern the practice of law. As Barrett says, “Invoking legal process brings into play constraints that Donziger declined to observe.” Donziger’s failure to play by the rules didn’t just hurt his clients because his “reckless business management and lack of a moral compass” cast doubt on the wisdom of the entire business model of celebrity litigation.
In the end, there are two judgments, but nothing has been cleaned up and the natives still have health problems. Donziger may have a $19 billion Ecuadorian judgment but he cannot enforce it in the U.S. courts. Those interested in the rule of law and the role of the courts and lawyers will find Law of the Jungle instructive, entertaining, and frightening.