You’ve heard of courtroom “junk science.” How about SWAG?
Junk science refers to dubious technical evidence presented by hired-gun expert witnesses. It’s one of the banes of civil litigation. SWAG, or “scientific wild-assed guessing,” is a form of junk science that came up yesterday in Chevron’s continuing lawsuit against a plaintiffs’ attorney who won a $19 billion pollution verdict against the company in Ecuador.
The briefest of background: Chevron is suing New York lawyer Steven Donziger in an attempt to discredit the record-setting oil-contamination judgment he won on behalf of rain forest residents in Ecuador in 2011. The company claims Donziger fabricated evidence and coerced and bribed Ecuadorian judges and court officials—allegations he vehemently denies. (For much more, start here and follow the links.)
SWAG came up in federal court in Manhattan as Chevron’s attorneys tried to illustrate that a number of Donziger’s former technical advisers, financiers, and fellow plaintiffs’ attorneys have disavowed their work with him and called him a fraud—allegations he also vehemently denies. Called as a witness by Chevron, David Russell, an environmental consultant based near Atlanta, explained that a $6 billion estimate he provided to Donziger in 2003 for the cost of cleaning up pollution in the Amazon was the product of SWAG. Russell then spelled out the meaning of the acronym, much to the amusement of U.S. District Judge Lewis Kaplan, who is presiding over the non-jury trial.
In a bizarre twist, Russell made this admission under cross-examination by one of Donziger’s lawyers, Zoe Littlepage. It seemed that Littlepage did not anticipate Russell’s confession that his cost estimate was less than scientifically precise. Russell also testified that he made some of his observations of waste oil pits from the comfort of a vehicle driving by at 40 or 50 miles an hour.
Chevron is arguing not only that Russell, at Donziger’s behest, exaggerated the environmental harm in Ecuador, but that Donziger for years continued to tout Russell’s suspect SWAG—long after Russell himself had told the plaintiffs’ lawyer that his figures were not reliable. In a further part of her cross-examination, Littlepage elicited from Russell that after the consultant underwent a falling out with Donziger, Russell turned around and offered his services to Chevron.
Donziger’s team apparently sought to establish that Russell was prepared to sell his expertise to whomever would pay his bill. Whether that helps Donziger’s cause remains to be seen. Meanwhile, Russell injected some unexpected levity into otherwise somber proceedings. The trial is expected to last well into November.