Opening arguments began in the landmark Bowoto v. Chevron case today, with the plaintiffs launching into an emotional outline of the events that led to the eventual shooting of several Nigerian unarmed protestors (check out Dan Firger's account for brief summary of the background of the case). The lead attorney for the plaintiffs - Dan Stormer - seemed to get choked up when describing the manner in which he asserted the Nigerian soldiers, whom were paid by Chevron, shot the villagers. Among those shot was lead plaintiff, Larry Bowoto, whom Stormer said was holding up his hands to show he was unarmed when he was shot. Heavy stuff.
But Chevron's lawyers were not to be outdone. Defendant's lead counsel, Robert Mittelsteadt, lead the jury through a lengthy, step-by-step explanation of Chevron's version of the trial, complete with sophisticated 3-D animation presentations of what the oil derrick looked like. Mittelsteadt spent his opening statement describing the protestors as sophisticated criminals and sea pirates who executed a commando-style raid where they stormed the oil barge, taking radio stations and heliports to prevent anyone from leaving the platform or communicating with the outside world. He described a situation where the villagers were acting on their threats to raid the platform and hold the workers of the oil derricks hostage, creating a "nervous situation" that was a "ticking time bomb" when the workers wanted to go home to their families. The bottom line, Mittelsteadt said, was that this case is about an American company's right and responsibility to protect its workers from threats.
But that statement is ridiculous. Of course American companies have a right and responsibility to protect their workers from harm - no reasonable person would argue that a company has no right or responsibility to protect its employees. The question isn't if they can protect their workers but instead if a company can kill unarmed protestors and ignore basic human rights in doing so. As Franklin D. Roosevelt said when addressing concerns of land owners worried about productivity during the Great Depression, "I may not be a lawyer, and I do not know much about the law, but I do know that you don't shoot your neighbor for trespass". Chevron is basically arguing that unarmed and peaceful protestors can be shot for merely trespassing on property that they claim is causing environmental contamination that is killing them.
And Chevron knows this - and they know that the soldiers working for them were out of control. During the plaintiff's opening statement Mr. Stormer showed the jury an email from one of Chevron's local directors referencing an incident from 1997, a year before Larry Bowoto and the other villagers were shot, in which the Nigerian soldiers that Chevron employs shot and killed a schoolteacher. In this communiqué the director calls the soldiers "uncontrollable" and suggests that Chevron purchase rubber bullets to equip the soldiers with, so as to avoid any other unnecessary killings. Needless to say, Chevron neglected to take any action to either reign in the out of control soldiers or equip them with rubber bullets, setting the stage for the tragedy on the oil derrick that day.
So now Chevron's lawyers have spent their day characterizing the protestors as criminals and sea pirates who were intending to cause harm to their property. Hell, even Mr. Mittelsteadt basically admitted that the protestors may not have been armed, stating at one point that "an oil derrick is a very dangerous place for untrained people. If they turned a valve the wrong way, it could cause an explosion." So, I guess, since there was a danger in having untrained personnel on the oil derrick Chevron decided to solve that problem by having the untrained people shot. Hmm - not sure if that really fits with Mr. Mittelsteadt's assertion that Chevron didn't want anyone to be hurt.
But this tactic is old hat for Chevron - when confronted with individuals attempting to call out the corporation for human rights abuses, Chevron pivots to the attack, characterizing anyone standing up to them as greedy, money-grubbing, and out for a quick buck. Or worse, as in this case, Chevron calls them pirates and human rights violators themselves. They've used the same process in the long-running environmental litigation in Ecuador, where they've called Pablo Fajardo and Luis Yanza (the recipients of the Nobel Prize of the environmental movement, the prestigious Goldman Award and the recipients of a CNN Heroes Award) "environmental con men" who are attempting to embezzle money from Chevron. The corporation conveniently ignores or discounts the scientific evidence gathered in Ecuador over 16 years, including the assessment of an independent, court-appointed expert who found that Chevron was responsible for massive toxic contamination and faces a $16.3 billion dollar liability as a result.
Unfortunately, I was disappointed in plaintiff counsel's failure to see this coming. In their emotional opening statement this morning, Mr. Stormer failed to effectively preempt Chevron's basic point that Chevron was exercising its basic right and responsibility to defend its workers. Rather than simply highlighting that basic argument and emphasizing that Chevron has a right to defend their employees but cannot simply shoot unarmed protestors wholesale, the plaintiffs instead focused on the powerful emotion of their narrative, almost as if they were expecting that simply standing up and saying that Chevron shot unarmed people would carry the day for them. As a lawyer, I just don't think that is a sufficient response to Chevron's argument - you have to anticipate the arguments from the opposing side and explain how they are insufficient to address your point.
I thought that Chevron's lawyers got the better of it this morning - I hope that the counsel for the plaintiffs will start anticipating Chevron's responses as we move forward. I'm eagerly anticipating some drama in the days to come.
Andrew Woods is a lawyer working with the Amazon Defense Coalition in Ecuador suing Chevron over oil pollution. A graduate of Harvard Law School, he has been a teaching fellow at the Harvard College Department of Economics and has lectured at universities across the nation, including UCLA, NYU, Harvard and MIT