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Archive for the ‘Commentary’ Category

Avoiding the Ad Hominem

In Commentary on November 26, 2008 at 3:16 pm

Last night, in an insomniac moment, I felt like adding a personal note to this blog. While my sympathies are clearly with the plaintiffs, I’ve always aimed to give a fair account of the defense counsels’ actions and arguments. No matter how critical I may be of Chevron’s handling of the affair-and some of their legal strategies-I wouldn’t want that criticism to be misconstrued as an attack on any of the attorneys on Chevron’s legal team. Legal arguments are there for the attacking, and the attorneys from Jones Day have provided a formidable defense that invites challenge.

Chevron’s attorneys have been doing their job and doing it well: defending their clients. I have great respect for their work and for the attorneys themselves-in fact, I’ve been following another major trial, U.S. v. Holy Land Foundation, in which John Cline from Jones Day defended a Palestinian-American philanthropist now convicted of financing terrorism through his support for Hamas. Read about the case here and full coverage here. Mr. Cline is an ace at cross-examination and it would have been great to see him at work in that case.

So I’d like to thank both legal teams for their work and for keeping things interesting.

Lastly, there’s another reason why we should thank the Jones Day attorneys for their work. The legal terrain of the Alien Tort Statute is still undiscovered country; when these cases get subjected to a vigorous defense, human rights lawyers learn more about how such claims operate, what defenses will be raised against them, what unforeseen rules or doctrines can be brought to bear on them. In order for the case law to be solidified, it has to be tempered in the adversarial process. So thank you adversaries…

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Looking Back on Week Four

In Commentary, Trial Notes on November 20, 2008 at 5:14 pm

The end is nigh: Chevron’s defense announced that they will rest their case on Monday. Judge Illston is expected to read the jury instructions–which by her hand gesture appear to be as thick as a phone book–on Tuesday. Closing arguments will begin Tuesday and should be concluded by Wednesday. Then it’s up to the jury.

After the fourth week of trial, I must confess that Chevron’s case seems stronger than I had first thought.  It’s probably inevitable that the balance would shift as the defense’s evidence accrues. That’s not to say that things won’t swing back in the plaintiffs’ favor by Wednesday.

Chevron’s case is built on the testimony of the expatriate–i.e. American–barge workers and supervisors aboard the CBL-101 barge at Parabe. While there have been major contradictions between the witnesses’ accounts, certain repeated elements seem to suggest that the Ilaje might not have been as peaceful as their testimony had indicated.

But then again peacefulness can be in the eye of the beholder.  Each of Chevron’s witnesses denied that the Ilaje were non-violent. When asked why he believed this, nearly every witness explained that the workers felt confused and didn’t have control over the situation. None of them produced the straightforward response I would expect: Because the Ilaje used physical violence.

So the perception that the Ilaje were violent seems based more on the workers’ state of mind–no doubt they saw themselves as hostages held by dangerous Africans–rather than on the observed conduct of the Ilaje villagers.

We’ve heard grossly exaggerated accounts of the expats’ ordeal. All that was missing was a cauldron to boil them in and a witch-doctor–oh wait a minute.

But we also heard relatively restrained versions. What’s common to all is the massive amount of hearsay. “I heard they ripped a door off the hinges.” “I heard they poured diesel all over the deck and lit matches.” “I heard they started a riot.”

So here’s my hypothesis as to what happened–and we’ll see how this compares to the plaintiffs’ closing argument.

I believe the crew was already slightly traumatized by the Itsekiri occupation in March 1998. Based on past experience and a foundation of rumour (and perhaps centuries of colonialism), the expat workers were predisposed to fear any native Nigerian who invaded their workspace. Thus the shock and dread they felt as they watched a swarm of dugout canoes approach the barge and saw Ilaje men scramble aboard the barge-even if CNL’s security team was standing calmly by. Nearly all of the witnesses stated that the boarding itself was violent–not because the Ilaje carried arms or attacked anyone–but because it was disorderly. They didn’t follow procedure and sign-in to the logbook. They didn’t board in a single-file.

Perhaps there was some shouting and maybe some shoving–although according to the witnesses, the Ilaje were constantly shouting for three days. Here, I wonder if the workers didn’t misperceive normal Ilaje speech as shouting.

There seems to have been some sort of confrontation at the gate to the platform, but what exactly happened is hard to say. From that point on, the expats–15 or so men–locked themselves in the living quarters and never went on the deck, only circulating in the offices, walkways and in the galley. As the hours passed they seemed to relay reports to each other, some of which were completely fabricated fantasies–seeing the Ilaje pantomime the assembly of Molotov cocktails–others were likely transferred memories from the March 1998 Itsekiri occupation. Still others were likely based on real observation.

All of this information–the product of a group of men lock inside, stewing in their own fear–was then radioed to Scott Davis’s crisis management team. The reports were all filtered through CNL’s representative on the barge, David Parkin, and given his imprimatur.

So Chevron’s crisis team based their decision on the frightened hearsay of men locked in a room for three days. Faced with supposed riots, razor blades, long knives, petrol bombs, diesel fuel all over the deck, natives playing with matches, men ordered to lie in the sun, men lifted in the air and held over the sea, Chevron Nigeria Ltd. (with Chevron’s approval) went and called in the Navy and mobile “Kill and Go” police.

I would say that herein lies the negligence: Scott Davis failed to verify David Parkin’s reports. He failed to consult the other men on board; he failed to compare the eyewitness perspectives to test their veracity; he even failed to confer with the captain of the barge. He made the same error when he failed to test Deji Haastrup’s perception of the negotiation process against those of Haastrup’s assistant negotiator; both should have been debriefed.

Anyhow, if I had to confront Chevron’s counsel’s evidence, that’s probably the line I would take. But I’m just a student.  Let’s see how the pros handle it.