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Day 17 11.25.2008 Closing Argument for the Defendants

In Trial Notes on November 26, 2008 at 3:35 pm

“No one from any Chevron company wanted anyone to be hurt or injured in any way…What Scott Davis and Deji Haastrup did during those three days was designed to reduce the risk.”

Yesterday, Bob Mittelstaedt pleaded Chevron’s case and, like everything Mittelstaedt has done in this trial, his close was tightly structured and watertight-90 minutes of cascading bullet points, rounded off with a neat summary and a restatement of key points. As I took notes, it looked like I was reproducing on the page the exact same outline that Mittelstaedt would have prepared. So for organization, thoroughness and clarity, Mittelstaedt scored some points.

And yet something crucial was missing. Mittelstaedt never produced a master narrative to dislodge the simple frame that Stormer had hung around the case. Instead, he rattled off point-by-point each piece of evidence. He countered, one-by-one, each of the plaintiffs’ claims. There’s nothing wrong with being thorough-but Mittelstaedt was addressing a jury whose eyes had started glazing after 66 pages of jury instruction and an hour of Dan Stormer’s closing, all with only two short coffee breaks and no break for lunch. Given the circumstances, walking us through the labyrinth of detail might not have been the best approach.

Chevron’s defense boils down to these lines, stated early on in the closing:

“Here’s the essence of this case when you step back and think about it: it’s a claim by people who held hostages […] against the victims of that crime. They’re saying that the victims of the crime-Chevron Nigeria, representing the barge workers-should not have reported this to the law enforcement authorities, should not have called for a rescue mission, and instead should have paid whatever money they were asked.”

The strategy has been consistent all along: put the plaintiffs on trial. Show that the criminal conduct, the wrongful conduct, was committed by the plaintiffs and that the Nigerian military, and thus Chevron Nigeria, and thus-if you travel one of the routes of vicarious liability-Chevron USA and co-defendants have done nothing wrong.

Mittelstaedt’s key assertions are by now familiar:
a)   that the Ilaje’s grievances were overstated
b)   that the Ilaje had a violent history
c)   that the Parabe incident was not a peaceful protest but a violent and unlawful invasion
d)   that the alleged commandeering of the tugboat Cheryl Ann, following the shooting incident, indicates the criminal intentions of the Ilaje
e)   that the photographs of the sea turtle being butchered on the tug indicate that the Ilaje had access to weapons
f)    that Chevron Nigeria Ltd. had a duty to report crime and a right to notify the proper law enforcement authorities
g)   that Chevron Nigeria Ltd.’s primary concern was the safety of those aboard the barge
h)   that Chevron Nigeria Ltd. had no intent to harm, much less kill the “invaders”
i)    that CNL negotiated in good faith and
j)    that the negotiations had definitively broken off by the night before the military raid
k)   that there was nothing improper about the parent/subsidiary relationship between Chevron Nigeria Ltd. and the parent corporate entities (i.e. the defendants)

Those are the main points, fleshed out with the detailed testimony of the expat barge workers, the chief negotiator Deji Haastrup, the crisis management team leader Scott Davis and the tugboat captain David Schools.

In his closing, Dan Stormer asked the jurors to watch closely and see if Mittelstaedt addressed the main issues. And did he? I thought he made strong arguments on some of the points at issue. For instance, Mittelstaedt pushed hard on the notion of the duty to report. Crimes against Nigerian law had been committed, he argued: hostage taking, unlawful seizure of platform, unlawful seizure of ship. In those circumstances, CNL had no legal duty to negotiate with the hostage takers or persons seizing the facility-CNL could have requested a rescue from day one. Instead, it took caution-
out of concern for safety-and negotiated. This is a good negligence defense, as well as a privileged duty defense, which speaks to some of the points at issue.

To shore up his central assumption-that this was in fact a hostage situation-Mittelstaedt relied heavily on the testimony of the witness who likely did the most harm to the plaintiffs’ case: Hugh McGowan, the expert in hostage negotiation. I don’t know if McGowan was insufficiently coached before testifying, or if it was just his temperament, but he absolutely cracked under John Cline’s masterful November 3rd cross-examination and the defense is still collecting dividends. McGowan began adopting Cline’s terminology-referring to the workers as hostages, and reinforcing the defendants’ version. As Mittelstaedt stated yesterday: “Even their witness ended up supporting Chevron’s position.”

So yes, Mittelstaedt’s close did address some key issues, but for the most part, his arguments veered off into distraction just as Stormer had warned the jury. To defuse the damning evidence of Chevron’s memos written on May 27th stating that the situation was calm, Mittelstaedt tried to suggest that the time-stamp was slightly off, that the original document had been re-faxed to the US embassy a few hours after it was originally sent. But any evidence he had for this assertion was muddled.

I thought the fact that Mittelstaedt spent so little time on the expat depositions was a tacit admission that their testimony was riddled with errors and obvious exaggeration.  He breezed through a few of them: Billy Burnham’s: “I was scared they were going to cut me up in little pieces.” This only shows that the man was scared, not that there was any substance to his fears. Idem for Jason Daniels’s “I thought of myself as a hostage every second of the day.” This shows his state of mind, sure, but beyond that what does it prove? Idem for David Schools’ testimony and the turtle photos.

For weeks, this jury has been awash in contradictory claims, paradoxical details and abundant hearsay: none of which adds up. I think it was incumbent on Mittelstaedt to provide a plausible, understandable narrative that the jurors could carry away with them. I’m not sure this jury had the attention span left for more minutiae. Instead, Mittelstaedt did the equivalent of tossing a bowl of noodles on the wall and seeing what sticks. The closest he came to a frame was his restatement of Chevron’s ex ante claims-not to toot a horn, but I think I predicted as much on Huffington Post last week.

After summarizing his argument in good lawyerly fashion, Mittelstaedt wrapped up with these lines:

“This case is about the right and duty of a company to protect its workers. Finally, this case represents the right of everyone to call on law enforcement when you are faced by crime here in the Unites States, or anywhere in the world.”

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