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Day 17 11.25.2008 Closing Argument for the Plaintiffs

In Trial Notes on November 25, 2008 at 9:17 pm

“Members of the jury, our system of justice is a model for the world. It is a system that has allowed the democratic process to succeed.  And it’s fitting that our clients have come 8,000 miles from a foreign land to come before you to seek justice, just 36 miles from San Ramon, where the defendants have their headquarters.”

It was a perfect pitch beginning for Dan Stormer’s closing argument. After a long trial that–like any trial–has often bogged down in minutiae, Stormer restored to the proceedings a sense of the broader meaning of the case.  Once the first few novel days had passed, we’d been left with the sometimes myopic, sometimes suffocating environment of a civil trial. Stormer’s closing was a respite from all that.

There was one thing the plaintiffs needed to do in closing–simultaneously control a week’s worth of damaging testimony from the defense’s witnesses and reinscribe the plaintiffs’ central narrative into the minds of the jurors. I think Stormer succeeded.

Last week, the defense’s case presented a fragmented account of the events: all of the expat witnesses gave wildly different accounts; after cross-examination and impeachment, the Ilaje witnesses seemed sometimes confused and sometimes less than credible. But I think that was part of Chevron’s strategy: turn everything into a confusing jumble and then repeat Chevron’s easily digestible but largely irrelevant counterclaims. Dangle a little juju and David Schools’ adventure stories, but bypass the actual allegations.

Since the facts had degenerated into that mess, Stormer refocused his argument on what was not in dispute: that the oil extraction industry had ravaged the Niger Delta, that Nigeria’s military dictatorship in 1998–which formed a joint venture with CNL–was at its most brutal and darkest hour under Sani Abacha.

Stormer then went on to reframe our image of the Concerned Ilaje Citizens–the group that carried out the Parabe protest. Countering Chevron’s relentless vilification campaign, Stormer reasserted the Ilaje perspective:

“We know that Larry Bowoto, Bola Oyinbo, Arolika Irowarinun, and Bassey Jeje were all a similar age. They were a new generation.  They started life in a thriving indigenous culture that supported their community. Then the seawater came in from the dredging and killed the fish, killed the mangroves, killed the reeds, it killed the animals. There was no timber, no drinking water. There was massive erosion, oil spills, gas flares. They even lost their graves…[B]ut this group had a new idea. They were going to address not just stay-at-home jobs. They wanted to address the environment, schools, and their future. And they had a more expansive agenda-using Scott Davis’s terms, they were an out of control group because they couldn’t be controlled by Chevron.”

Stormer then walked us through the sequence of letters sent by the CIC to CNL requesting that they meet to address these grievances–letters which apparently Chevron never bothered to read until after the incident. He stressed this point–for all of the defense’s insistence on the ‘sea piracy’ language as proof that CNL was dealing with a violent group, CNL hadn’t even read the CIC’s letters at the time and thus couldn’t have felt threatened by the letter-writers’ diction.

The plaintiffs made good use of the projector as they showed the room direct quotations from the memos, logs, and emails written during the 3 days of the occupation:

May 25th Scott Davis: “Peaceful so far”
May 26th “All quiet on the barge”
May 27th Thomas Schull email to COP/CUSA: “villagers unarmed, situation calm since arrival. Still in negotiation.”

Stormer also derived a key point from Scott Davis’s testimony: Davis insisted there was an impasse because the Ilaje demanded 10 million Naira for logistics and a large sum for environmental reparations. “If this would involve those sums of money, this was going to drag on for a long time.” Then he made the decision to call in the military. Contrary to the defense’s assertion, Scott Davis never cited rescuing the hostages as the reason he called in the guns: his goal was to evict the invaders.

As we got into the gravamen of the case against Chevron, Stormer ran through a series of damning quotes from internal memos that indicated that Chevron Nigeria Ltd. and the parent company were well aware of the brutal reputation of the military and the “kill and go” mobile police. They even declared the mobile police “a greater threat to our people than the communities” and “a threat to Chevron staff and contractors.” This certainly seems to speak to negligence.

Stormer drove on with his uncontested points: We know that the military was paid, fed, housed and supervised by Chevron. {Speaks to agency} We know that Chevron leased helicopters and paid pilots to fly out army, navy, and kill and go personnel to Parabe–to evict invaders. We know they carried their rifles at port arms–as Wayne Hawkins vividly described. We know their orders were to shoot tear gas to drive the protesters off the barge and onto the platform–the platform that Chevron repeatedly insisted was so unstable and unsafe.

This was their plan. There was no back up plan other than using deadly force. What else could the security forces do? They were simply dumped on the platform, with no boats for evacuating the hostages or the protesters for that matter. What could one reasonably expect an armed force with a “notorious reputation” {Chevron’s words} to do in such a situation?

Stormer then started landing the body blows: a graphic and gripping description of the torture and beating of Bola Oyinbo and the other detainees–which, as he would later point out, constitute the core of the claims of unlawful arrest, torture, and cruel, inhuman and degrading treatment which fall under the scope of the Alien Tort Statute.

From this devastating testimony, Stormer moved to the most impeaching evidence against Chevron USA and  co-defendants: a series of false media statements issued in 1998 that were deliberately intended to cover up the wrongful acts of the Nigerian military and Chevron Nigeria Ltd. Here’s a sample:

In the LA Times: “Bottom line of it all is Chevron has not been involved or connected in any internal police activities in Nigeria.”

In the Wall Street Journal: “Chevron didn’t pay for troops to come to Parabe rig.”

And this came right after we heard Judge Illston read a jury instruction stating that the defendants can be found liable if-after the fact-they ratified, adopted, or approved the primary agent’s wrongful conduct, even if it was originally unauthorized. The instructions explicitly state that false media statements and false statements regarding the ownership of boats and helicopters can be considered an attempt to cover up the wrongful conduct, and are thus evidence of ratification.

I will deal with the jury instructions later, but this is definitely a strong point for the plaintiffs.

With that, Stormer brought out a central theme of his argument: Chevron’s distraction strategy. Stormer asked the jury to see if Chevron will actually defend itself on any of the issues at stake because it hasn’t so far. Instead, it has thrown up a smoke screen of distractions at the jury in an attempt to mislead them. Thus the long irrelevant tugboat testimony-involving none of plaintiffs and occurring after the shooting.  Thus the preposterous and at times obviously fabulated testimony of the expats. Thus Tim and Mike Browne’s obviously cribbed statements. Thus Burnham’s videotaped deposition where he gives one response and is then coached into another by Chevron’s counsel. Thus the ridiculous juju theory. [Stormer didn’t mention it-he didn’t need to.] Thus the turtle incident. Thus the pantomimed Molotovs.

In the end, I think the plaintiffs recovered a lot of ground via the closing argument. I confess that I too was feeling bogged down in the details and had lost the big picture. Stormer’s narrative was a corrective: compelling, plausible, and most importantly simple. It was something for the jurors to hold onto-a frame to hang around the case. Will it be enough to sway every juror? Who knows.  At the very least the plaintiffs can be satisfied that their case was made.

With his last lines, Stormer tied in the defense’s strategy in the courtroom with the Chevron P.R. wing’s disinformation campaign back in the 1990s:

“They didn’t want to be held accountable by the press in 1998, so they lied. They don’t want to be held accountable now. But you–through our system of justice–can hold them accountable.”

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