Chevron v. Donziger: After Botched Quiz, Ex-Judge Seeks Redemption

, The Litigation Daily


(Editor's Note: The American Lawyer's Michael D. Goldhaber is filing regular dispatches from the Manhattan federal district court bench trial in Chevron Corp. v. Donziger. Please click here for background on the case—and scroll down for an expanded collection of American Lawyer coverage.)

After flunking a pop quiz last Tuesday about the $19 billion judgment issued against Chevron Corporation in his name, Ecuadorian ex-judge Nicolas Zambrano remained on the stand for most of the week. As Zambrano's testimony continued on Nov. 6 and 7, Chevron kept attacking his integrity, and Chevron's foes tried to rehabilitate their star witness.

Zambrano did his best to recover from his failure to recall basic features of the mega-judgment he signed in 2011—and which Chevron claims was actually authored by Steven Donziger or his allies in the underlying Ecuadorian environmental litigation. In a sequel to the memory test that Gibson, Dunn & Crutcher's Randy Mastro sprang on Zambrano on Nov. 5, the court administered what amounted to an open-book essay exam, giving the former judge a second stab at one of the questions he had botched. Unfortunately for the defense, Zambrano continued to struggle to find coherent answers.

If Zambrano really wrote the judgment, why was he so rattled when Mastro put him to the test? Zambrano testified that he hadn't read the 188-page judgment since it was issued in Feb. 2011. In giving the defense latitude on direct examination, U.S. District Judge Lewis Kaplan acknowledged that the passage of time since the judgment issued was a fair point.

Oddly, Zambrano did not revisit previous explanations that he's given for how passages from plaintiffs' memos wound up in the judgment. Last March and in his deposition, he declared that folders marked "courtesy of Chevron" were occasionally left at his door; and that he considered this material of use, after checking it against the record, if there was a basis for it in the record. On cross, Zambrano muddled matters by denying that he checked the gifts at his doorstep against the record. He also undermined his alibi when he agreed, after prodding, that he never received computer disks on his doorstep that might have accounted for tabular data in the judgment.

Was writing the judgment physically possible in the the less than two months between the close of evidence and the date of publication? Citing a speed-reading expert, Chevron has argued that it was impossible for one person to review a 236,000-page record in that time, and to write a 188-page, single-spaced opinion while issuing scores of other orders in the months leading to judgment. Zambrano responded on direct by noting that the 200 other orders he issued from October 2010 to February 2011 were largely procedural, and some took only five minutes apiece. Likewise, Zambrano said on cross that he began dictating the opinion before the close of evidence, and that he was lying when he told the press in January that he had 50,000 pages of the record left to read.

How did Zambrano cite foreign language case law despite knowing no foreign languages? In his cross, Zambrano had suggested that his 18-year-old typist would pull up foreign cases online, and translate them into Spanish using an online tool. In direct testimony, Zambrano suggested that there was no mystery—he had simply borrowed some foreign cites from the Ecuadorian precedent that he relied on in his key passage on causation. However, Zambrano undercut what might have been his best argument of the day by failing to recall the precedent's case caption.

In the same key passage of the 2011 judgment, its author adopted something called the "theory of sufficient cause"—claiming that it was "favored by most legal theorists and the jurisprudence of the courts of other countries." In Chevron's pop quiz, Zambrano had been unable to name the theory.

During direct examination, Judge Kaplan allowed Zambrano to review the riff on causation and then forced him to explain it at length. Unfortunately, in matching wits with Kaplan, Zambrano gave halting and sketchy answers that did nothing to bolster the impression that he wrote the opinion he signed. One also got the feeling that the summarized proposition—in essence, that causation may be presumed—struck the American judge as an alarming and ill-founded statement of U.S. tort principle.

Some other highlights of Zambrano's appearance on Wednesday and Thursday:

Near the end of its hostile cross-examination, Chevron noted that Zambrano was thrown off the bench by the Ecuadorian Judicial Council in February 2012 for having released after arraignment a man caught transporting over 500 kilos of cocaine, who then fled the country. According to the newspaper Diario HOY, the complaining police official believed that the suspect had been released "either because of fear of retaliation from the FARC, or because there was a payoff." The judicial conclusion was merely that Zambrano had acted "with malice, manifest negligence or inexcusable error."

Zambrano was unemployed over a year later, in March 2013, when he signed a declaration in the New York litigation to counter ex-judge Alberto Guerra's accusations of bribery. The next month, Chevron established, Zambrano became an in-house lawyer at the Refinery of the Pacific—a joint venture between the national oil companies of Ecuador, China and Venezuela—for $46,000 a year, or slightly more than his salary as a judge. Chevron observed that Zambrano's judgment in the underlying Amazon pollution case attributed no responsibility to PetroEcuador, which controlled the oil consortium, as it controls his current employer. Finally, Chevron pointed out that Ecuador's president called Zambrano's decision "the most important judgment in the history of the country." Zambrano denied knowing of the president's outspoken support, even though it was emphasized in Chevron's closing trial brief.

In the live direct examination that followed, Zambrano denied having taken any bribes in his career, and insisted that he alone wrote the judgment against Chevron. It was true, he said, that Judge Guerra sometimes helped him with first drafts in other cases, but Guerra was never paid. A $300 check from him to Guerra was simply a loan to help a friend through a rough patch, he testified. Zambrano got his current job over the Internet, he said, and Petroecuador was not paying him to testify.

On the other hand, Guerra told him that Chevron was willing to pay Zambrano $1 million for friendly testimony, he said. The defense produced a telephone recording in which a Chevron lawyer begged to meet with Zambrano as recently as this January. (Guerra testified that, while he had urged Zambrano to negotiate for $1 million, Chevron had "never suggested any such thing.")

In recounting his personal history, Zambrano corroborated Guerra's testimony that Zambrano's legal expertise was predominantly in criminal law. Chevron brought out in recross that Guerra, by contrast, had a master's in international environmental law. Zambrano also said that he chose law "because I liked to behave with probity and always with the truth."

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