Day Three: Challenges of Rapport Building

In Trial Notes on October 29, 2008 at 8:18 pm

Federal Court House, San Francisco. Impenetrable fog at dawn this morning.

And inside the courtroom, it was a gloomy start for the plaintiffs as well. The previous day’s opening statements for Chevron and their spirited cross-examination of the witnesses had dispelled any thoughts that Larry Bowoto’s legal team would have an easy time of it. Mittlestaedt was, as expected, a total bull dog, and the other attorneys were relentless in attacking the character of the plaintiffs’ witnesses and undermining their version of events.

I agree with the observation made by fellow-blogger Andrew Woods here that plaintiffs’ counsel didn’t sufficiently predict and preempt the defendants’ line of argument. Instead, the plaintiffs relied on emotion; but pathos alone won’t be enough to convince the jury that Chevron should be held accountable for the actions of Nigeria’s armed forces.

This strategy might work in a criminal trial, but here the gap in showing liability is too great: to bridge it, the plaintiffs need to convince the jury that Chevron knowingly hired human rights abusing armed forces to clear the protesters from the Parabe platform. Even if Chevron did not intend to kill anyone, they supplied the means of the killing and had prior knowledge that its paid agents were likely to use violence. According to many legal commentators–here and here—this should meet the threshold for aiding & abetting under international law.

There’s another potential flaw in the plaintiffs’ strategy: the assumption that an American jury will be able sufficiently to empathize with the Nigerian victims. They say it’s a small step from the sublime to the absurd, and any civil litigator should know that between pathos and bathos the step is even smaller. Emotionality can backfire, especially when you factor in the cultural differences that make it difficult to build rapport. Interpreted speech is notoriously flat and the disjunction between an interpreter’s delivery and the victim’s affect can easily throw a jury off. Similarly, body language and ways of grieving are culturally determined. An American just might misinterpret the foreign manners of the Nigerians as insincerity. And against Chevron’s hard-nosed defense, the plaintiffs had better avoid any sense of crocodile tears.

There was a difficult moment in court today when Larry Bowoto broke down on the witness stand. Asked to identify a photograph of Arolika Irowarinunwho was shot to death on the Parabe platform–Mr. Bowoto began sobbing, along with Irowarinum’s three widows seated in the audience. The court was forced to take a five minute recess. Because Americans are generally uncomfortable with public displays of grief, there was palpable discomfort in the room. Certainly, some observers were moved by the scene (this writer included); but I fear that someone with an ounce of doubt about the plaintiffs’ claims could view all this emotion with suspicion.

Chevron will certainly try to play up this angle—insinuating that the plaintiffs are scammers (Nigerian Scammers!!) going after Chevron’s wealth. In so many words, Chevron has already dismissed human rights litigation as international ambulance chasing.

I really hope that plaintiffs counsel will be able to shift strategy to careful construct an aiding and abetting argument against Chevron’s position. We’ll find out over the course of the next few weeks.


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