Crude Awakening

Michael D. Goldhaber

• Publisher: RosettaBooks
• Year: 2014
• ISBN:
  9780795343971
• Topic: Derecho
• Subtopic: Derecho medioambiental

"A rip-roaring new ebook that chronicles the saga of the two [Chevron] trials... Shocking, appalling and hugely entertaining. "— Financial Times A behind-the-scenes look at the world's biggest and most tangled legal case. On their way to winning a $19 billion verdict against Chevron in Ecuador, lawyers for the Amazonian plaintiffs invited a documentary film crew to record their every move. Unfortunately, their every move included fraud. Chevron subpoenas the outtakes and follows the clues from one improbable fraud to another. The drama culminates in a racketeering counter-trial, where it's the testimony of one corrupt ex-judge against another. A detective story and courtroom drama, with an epilogue of keen commentary, Crude Awakening is the definitive account of Chevron's struggle to prove that the truth is the truth—even when the truth is on the side of the big bad oil company, and not on the side of the charismatic little guy fighting for the indigenous people of the Amazon rain forest. Crude Awakening will captivate both students of law and students of human nature. "A superb feat of legal journalism."— Forbes

CRUDE AWAKENING

Chevron in Ecuador

By

Michael D. Goldhaber

Copyright

Crude Awakening: Chevron in Ecuador

Copyright © 2014 by Michael D. Goldhaber

All rights reserved. No part of this book may be used or reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without permission in writing from the publisher, except by a reviewer who may quote brief passages in a review.

All sketches are credited with deep thanks to the artist Elizabeth Williams, author of The Illustrated Courtroom: 50 Years of Court Art (CUNY Journalism Press 2014).

Cover image derived from original by Julien Gomba. Licensed under a Creative Commons Attribution-ShareAlike 2.0 Generic license.

Cover design by Brehanna Ramirez

p class="copy">ISBN e-Pub edition: 9780795343452

TABLE OF CONTENTS

CAST OF CHARACTERS

FOREWORD

I. FIRST CUT

The Movie Trailer

Crude on First Viewing

$27 Billion

II. DISCOVERY

“It’s Dirty”

Nancy Drew

The Crudest Cut

“Shockwaves”

The Star

Doubling Down

Nancy Drew Again

The Ghostwriter

III. TRIAL

Day One

The Ghostwriter on the Stand

The Judge in the Red Hat

The Goat on the Stick

Jury Arguments

IV. FINAL CUT

The Underlying Truth

A Global Civil Action

Some False Lessons

Some Real Lessons

Law and PR

AFTERWORD

ABOUT THE AUTHOR

CAST OF CHARACTERS

Steven Donziger	…	Overzealous U.S. lawyer in the Amazon trial. Chevron’s Captain Ahab.
Pablo Fajardo	…	Overzealous local lawyer in the Amazon trial. Ahab’s chief harpooner.
Hugo Lucitante & Judith Kimerling	…	Authentic voices for indigenous peoples of the Ecuadorian Amazon.
Paul Dans	…	Chevron’s unsung hero. Junior lawyer who started asking right questions.
Sara McMillen	…	Chevron’s Nancy Drew. Senior scientist who kept asking right questions.
Randy Mastro & Andrea Neuman	…	Chevron’s lawyers at the New York trial. The hosts of the barbecue.
Rick Friedman & Zoe Littlepage	…	Donziger’s lawyers at the New York trial. They worked for the grilled meat.
Andrés Rivero	…	The man who flipped the ghostwriter.
Judge Guerra	…	The ghostwriter who got flipped.
Judge Zambrano	…	Doubted author of 200-page Ecuador ruling against Chevron.
Judge Kaplan	…	Undoubted author of 500-page U.S. ruling against Donziger.
The Chorus	…	Innumerable lawyers, in harmony with countless consultants.

FOREWORD

The 2009 movie Crude documented the historic environmental lawsuit brought by residents of the Amazon against Chevron in Ecuador based on two decades of reckless drilling by an American-led oil consortium. Most viewers saw Crude through the narrative frame set by Erin Brockovich and A Civil Action—a pair of good Hollywood courtroom dramas based on real-life toxic torts. A heroic fighter for legal rights (a sassy paralegal played by Julia Roberts or a down-on-his-luck lawyer played by John Travolta) helps the oppressed little people to expose a cancer cluster caused by a big bad corporation. Only in Crude, the corporation is much bigger and badder—Chevron sold over $220 billion worth of fossil fuels last year. And the oppressed little people in Crude—indigenous communities in the Ecuadorian Amazon that were among the last in the world to be contacted by modern civilization—are a lot more marginalized than the lower-middle-class suburbanites of Hinkley, California or Woburn, Massachusetts.

Unfortunately, this ebook is not the Latina Erin Brockovich. And it’s not A Global Civil Action (except in the sense that it tries to capture the state of the art in global litigation). If there’s a genre it resembles, it’s the con artist movie, in the prolific tradition of The Grifters, American Hustle, or Catch Me If You Can. But while these titles are evocative, Hollywood has yet to reimagine the courtroom drama as con game.

In reality there were two “Chevron in Ecuador” trials. There was the epic environmental trial brought by the plaintiffs in Ecuador against Chevron. And then there was the epic “counter-trial” staged by Chevron in New York—to expose the litigation fraud committed by the Ecuadorian plaintiffs’ team. The documentary Crude captured the original trial on film. This ebook tells the story of the counter-trial, which put the Amazonian plaintiffs in the dock. It is the author’s reluctant judgment that—while environmental practices in Ecuador were crude—litigation practices were cruder.

The director of Crude, Joe Berlinger, was acclaimed for a documentary, Metallica: Some Kind of Monster, that purposely conveyed unflattering truths about his subjects. But it seems that somewhere in the rain forest, Berlinger lost his capacity for critical distance. For Crude told the story that the plaintiffs wished to tell, and only the story that the plaintiffs wished to tell. Yet the director’s cut was far from final. And in time it became a key part of the drama. Crude’s lasting importance lay not in its contested evidence of contamination—but in the hints of fraud it gave to those who knew where to look. The proper place to begin the tale of corruption is therefore with Crude. A brief presentation of the movie, along with its critical reception and legal context, comprise the introductory first chapter of this ebook.

The heart of Crude Awakening is formed by Chapter Two, which tells the inside story of Chevron’s filmic fraud investigation, and Chapter Three, which takes the reader behind the scenes at Chevron’s cinematic counter-trial. Chevron pulled back the curtain on its adversary’s fraud with a series of revelations worthy of detective fiction. But the complete truth could only be revealed by the two crooked ex-judges who stage-managed the original judgment in Ecuador. Thanks to an audacious witness-flipping operation, and a foolish strategic blunder, both bad judges showed up in New York to present their dueling versions of reality. The liar was laid bare by a cross-examination in the form of a quiz—a bold stroke that will be studied as long as trials hold the power to fascinate. This ebook concludes in Chapter Four with the author’s own attempt at a final cut. To students of law, the Chevron case is a primer on global litigation. To students of policy, it offers lessons on the toxic mix of science, law, and public relations. To students of human nature, it’s a blockbuster of a story.

Chevron’s voyage of discovery literally began with a viewing of the film Crude. Its counter-trial effectively reedited the director’s footage. A preview of the documentary is therefore a fitting place to begin this ebook. The movie trailer introduces Crude’s key characters and storylines to the general public with a mix of powerful images and text. Only the most attentive viewer might detect a layer of irony, and a flash of hidden truth.

An Amazonian in New York: The indigenous leader Javier Piaguaje was among the Ecuadorians who sued Chevron for environmental harm in Ecuador, only to be sued by Chevron for litigation fraud in New York.

I. FIRST CUT

A matron of the Cofan people from the Amazon forms an indelible image onscreen, her nostrils pierced by the stem of an orange flower and cheeks brushed with red from an achiote fruit. Slowly she keens in her native language:

We lived upon the river of rich clear waters,

But with the arrival of the contamination,

My brothers are now dead,

I am the only survivor of my family.

Subtitles flash at the bottom of the picture, distilling the world’s most complex litigation into the bumper sticker melodrama of a movie trailer. “IN THE HEART OF THE AMAZON RAIN FOREST… A $27 BILLION LEGAL BATTLE IS RAGING.”

The Movie Trailer

A few seconds into the preview for the movie Crude, a big handsome man lectures intensely to a camera in the jungle: “We are suing for environmental cleanup.” This is our first glimpse of the lawyer behind the lawsuit: Steven Donziger. A cross between George Clooney and an Easter Island statue is how Donziger has been described by the journalist Peter Maas. With the Easter Islanders he shares a blockish body; with Clooney a silver crop of hair and a taste for foreign intrigue. Between kibitzing with the locals and schmoozing about asymmetric warfare, Donziger drives the movie’s plot forward through a cascade of public relations coups.

As Donziger speaks, roustabouts in hard hats strain at their oil rigs in black-and-white footage from an industrial film made in 1970, after Texaco (later bought by Chevron) struck oil in the Amazon. “What was once paradise,” declares a newscaster with the voice of authority, “now has just been left in destruction.”

Soon we see a slight man dressed in khaki railing before an Ecuadorian judge at a well-site inspection like a preacher at a tent revival: “Today men and women are suffering and dying from cancer!” This is the plaintiffs’ local lawyer, Pablo Fajardo. As a guitar strums softly, Fajardo shows the camera his humble boyhood home before viewing his photo in a Vanity Fair spread celebrating the lawsuit. Fajardo only wishes it could have been the photo of a sick family. He speaks with pain of his brother’s murder days before the trial’s first well-site inspection and shares the suspicion that the murderer was looking for him. “I know I always tell the truth,” Fajardo assures us, “and if I have to die for it, then I will with pleasure.” We are invited to investigate the environmental case and “see who is lying.”

Manohla Dargis, The New York Times: “A forceful, often infuriating story about Big Oil and little people.”

At this point in the preview, we witness Chevron’s first response. The company’s chief scientist, Sara McMillen, protests softly but firmly: “There’s absolutely no evidence that there’s an increase in cancer.” As she speaks, the image of a burning gas plume is shown side by side with pictures of a young boy in a hospital bed and a baby with a grossly distended belly.

Now we see Ecuador President Rafael Correa flying on his chopper to the Amazon, laughing with Fajardo at his profile in Vanity Fair. On a tour of polluted oil sites, the plaintiffs show Correa a stick covered with goop. “The analysis of our water and soil samples,” states Donziger, “have proven that they’re guilty of massive contamination.”

“This is not contamination,” counters Chevron’s pale-skinned local trial counsel, wearing a hat with irredeemably ridiculous neck flaps. “This is industrial exploitation permitted by the law!” His message is undercut by the visuals of a dying bird with spastic feet lying in an oily puddle as children frolic in the nearby water.

Stephen Holden, The New York Times: “A sprawling legal thriller with rare depth and power.”

Then, in what may be his defining scene, Donziger ambushes a Quito judge with TV news cameras. The plaintiffs are determined to halt Chevron’s inspection of their sampling lab, and Donziger is willing to use any tactics to do it. “So we’re going to have a little chat with the judge today,” Donziger explains. “This is something that you would never do in the United States. But Ecuador, you know, there’s almost no rules here. And this is how the game is played. It’s dirty.” Moments later, a hinge squeaks and Chevron’s local lawyer enters the office. Still playing to the TV cameras, Donziger jabs his finger and bellows in Spanish: “You are a corrupt lawyer! You are a corrupt Texaco lawyer!”

Another jump-cut and Donziger finds himself at Correa’s inauguration, where he muses in the voice of a reasonable man who has been unreasonably put upon. “People are fed up with corruption,” he says. “They’re fed up with foreign oil companies, and they’ve just had it.”

“FROM THE CORRIDORS OF POWER TO THE DEEPEST JUNGLE, THE TRUTH CANNOT BE BURIED.”

The fast cutting gets faster. “This is about some of the most marginalized people on earth fighting one of the most powerful oil companies in the world,” says Donziger. “This is drinking water, Mr. President,” says an interspliced voice. “Smells like oil, gasoline,” replies the president. “Texaco did terrible things,” says Fajardo. “Texaco has to answer for itself!”

A Chevron in-house lawyer objects: “When you look at the science, they cannot really prove their case.” His comment is sandwiched by images of oily soil and simple folk standing in the forest holding photos of sick babies.

The final montage begins with Fajardo entering Giants Stadium in New Jersey as the rock star Sting strides onstage to headline an Earth Day gig that concluded twenty-four hours of concerts on seven continents, counting the scientists’ house band in Antarctica. In the trailer’s surreal crescendo, Sting chants:

I’ll send an SOS to the world,

I’ll send an SOS to the world,

I hope that someone gets my

Message in a bottle…

In the style of an MTV video, the camera shows the court-appointed damages expert—Ricardo Cabrera—delivering his boxed report to the judge’s office in Ecuador. While the Meadowlands crowd cheers, subtitles explain that the court-appointed expert recommended that Chevron pay up to $27 billion.

“The fact that we’re having a trial is a miracle,” says Donziger, while his dog frolics in the snow in New York’s Riverside Park. “It’s a huge victory.”

As his remarks fade, we see the silhouette of a man on a quest gliding deeper into the jungle on the edge of a canoe. The trailer ends as giant stencil letters spread like an oil spill to form black blots on the map of Ecuador spelling the word CRUDE.

Crude on First Viewing

Steven Donziger considered screening the movie on the side of an oil tanker. He settled for Sundance Film Festival, where Crude began its run of critical acclaim. The movie drew praise from sources both highbrow and low, eventually earning a Rotten Tomatoes critical rating of 95. The New York Times gave it a rare trifecta of blurbs from all three of its film reviewers. (A.O. Scott didn’t make the trailer with “Thorough and impassioned… intelligently and artfully made.”) Hitflix.com called the movie a “classic David vs. Goliath story that you’d swear… was written by a well-meaning liberal screenwriter.” The Hollywood Reporter gushed: “If you like movies with real-life good guys and bad guys, then Crude is for you.”

But how can a fair-minded moviegoer know who the real-life bad guys are? Clearly, there is a lot of black goop in the jungle. What can’t be discerned is who dumped the black goop, how toxic it is, whether it spread to the groundwater, and whether it harmed anyone’s health. What can’t be discerned is who speaks the truth. In a just world, those questions would be decided by an impartial court, based on science unskewed by advocacy, in a trial that gives all parties due process of law.

In Crude, all we have to go on is the narrative frame of Big Oil v. indigenous people. The moviemaker did not trust his viewers enough to let a Chevron character open his mouth without being undercut by the visuals. So the casual moviegoer naturally assumes that the characters presented as bad guys are the liars.

Hugo Lucitante was not a casual moviegoer. He is the great-grandson of the Cofan chief who founded the tiny Amazon community of Dureno, where several scenes in the movie were set. Born in Dureno and raised in a more remote settlement, he was sent to the United States at age...

Table of contents

• Cover
• Title Page
• Copyright