Tuesday, April 23, 2013

Note to Chevron: Your Trial Lawyers at Gibson Dunn Need Some Serious Help

Reposted from The Chevron Pit

It is becoming increasingly clear that Chevron's high-priced legal team in the $19 billion Ecuador case lacks basic trial skills.

One of the most intriguing sights in the three-day hearing last week in New York on a discovery dispute related to the case was not the fact Chevron trucked in about 35 lawyers for the event.

It was that with 35 lawyers backing them up, the lead lawyers for Chevron – Randy Mastro and Andrea Neumann – seemed so disorganized and out of sorts.

They looked like what they are: corporate lawyers representing a big oil company trying to crush its indigenous victims and their lawyers.

That can't be good for Chevron.

Judge Lewis A. Kaplan will no doubt use the hearing to further script the RICO trial in Chevron's favor by prohibiting the use of almost all evidence that makes Chevron look bad. Judge Kaplan, who was unanimously reversed once in the case, already ruled that the extensive evidence of Chevron's contamination in Ecuador – evidence that proves the case was decidedly not a fraud – cannot be discussed in court.

Judge Kaplan is now well on the way to throwing out counterclaims from Steven Donziger (a longtime lawyer for the Ecuadorians) that outline a chilling tale of Chevron's environmental crimes in Ecuador, fraud, lies, espionage, and cover-up. Again, Judge Kaplan apparently does not have the guts to let the truth come out.

But even show trials don't always go according to plan.

Both Mastro and Neumann seemed to fall over themselves in court, at times infuriating Judge Kaplan.

Mastro repeatedly made speeches before he asked his questions, prompting Kaplan to repeatedly sustain objections. Mastro would then try to reframe his questions, but had trouble figuring out how.

After one of his speeches, Judge Kaplan asked Mastro: “Sir, is there a part of that treatise from which you want to ask a question?”

Neumann appeared as charming as the class nerd who takes notes and regurgitates them back on the next multiple choice test. She read her questions from a thick binder, imposing a form of slow torture on the court by going page by page without adjusting depending on what the witness said or how the court reacted.

Kaplan repeatedly asked her to stop wasting the court's time.

Neumann began her examination of one witness by reading from a sworn declaration signed by the witness. But she forgot to have a copy of the document available for the witness.

When Neumann had to interrupt her examination to ask her 35-person legal team to find another copy, it took a mind-numbing five minutes of frantic searching until one was discovered. In the meantime, Judge Kaplan fumed.

When Neumann gave another document to the witness, he mentioned that it had some writing in the margins from Chevron's own lawyers. The Chevron team then scrambled for a clean copy while about two dozen associates did nothing.

Judge Kaplan said: “Please Ms. Neumann, now really… I really don't expect to see this from lawyers of your caliber.”

While the Gibson Dunn army (at least 114 lawyers from the firm are on the case) tries to drown the plaintiffs in motions, only one lawyer can talk at a time in open court. That neutralizes Chevron's huge resource advantage when Mastro and Neumann are at the helm.

John Keker, the lawyer for Donziger, is a former Marine known for prosecuting and convicting Oliver North in the Iran contra scandal. Nobody on Chevron's team can come close to him in terms of intelligence, presence, and persuasiveness.

Judge Kaplan, not surprisingly, often tried to shut down Keker by calling him up for “sidebar” conversations that take place in whispers in front of the bench – a bizarre move indeed given that there was no jury around. It underscores just how much Kaplan plays to the gallery.

Judge Kaplan's challenge is to figure out how to keep Keker from getting his client a fair trial before a jury. That would be very risky bet for Chevron under any circumstances, but particularly with this duo running the show.

Mastro's bigger problem is that he has better political connections than trial skills. He served as Deputy Mayor to Rudy Guliani when the Mayor carried out a racially divisive political strategy, which Mastro helped him implement with evident gusto. His friends suggest he sees the Ecuador case as the pinnacle of his career.

Also of note is that Mastro's new star hire, former New York federal prosecutor Reed Brodsky, seems to be working as a junior law clerk on the Chevron trial team. In 2011, Brodsky used his formidable trial skills to win a conviction against hedge fund titan Raj Rajaratnam and parlayed that into a lucrative job under Mastro.

During the hearing, Brodsky was sitting next to Mastro and Neumann so he could pass notes and whisper in their ear. He never stood up to ask a question.


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