What WAS that in the Gulf again?
Gee, everybody not in this area is likely thinking that it’s all over now that the well has been plugged, the moratorium on drilling for crude has been lifted early, and there doesn’t seem to be much happening on the surface of the water. Even the seafood seems to be passing its smell tests.
That was all just a bad dream, those past few months.
Umm, no. No, the BP oil disaster was all too real. And it’s only going to get worse.
See, we live in an age where the individual(s) who can put on the best show in a courtroom, backed by the interpretations of the labyrinth that the law in this country has become, can capture the day. Since the folks who have been the most traumatized by the immediate effects of the Deepwater Horizon blowout are now entering the stage that will be giving them the most prolonged torture they will ever know – litigation in order to at least get some compensation for the damage done to their livelihoods and their health – I found some things they might find useful. Or, maybe not, depending on their mindset. From my recent readings, I have gleaned that there are still no easy answers to taking on a multinational corporation and getting it to admit wrongdoing and to adequately compensate the victims of its misdeeds – there are only some important things to keep in mind…
…the first thing being one of many studies by sociologist Dr. J. Steven Picou, who, in concert with many others, studied the tangled web of defenses and dodges Exxon put forth in the courts for decades after the Exxon Valdez ran up onto Bligh Reef in Prince William Sound and the effects of the litigation on the victims.
Unfortunately, victims of technological disasters are dealt a double blow. First, they must endure the initial trauma of experiencing real or perceived toxic contamination from the disaster-event. Second, their only formal avenue of seeking redress is through an adversarial legal process that is also a source of chronic social disruption and psychological stress. Adversarial adjudication results in a “secondary disaster†that continues over time, preventing timely disaster recovery.
If you’ve had to fight insurance companies, the Road Home program, and many other organizations to get your house out of the flooded mess it was after the levees breached, the above paragraph is already describing something quite familiar to you. Check Picou’s latest publications for his studies on the prolonged effects of Katrina on Mississippi Gulf Coast residents and of the levee breaches on New Orleans residents.
Thing is, it’s one thing fighting the incompetency of government bureaucracy, but quite another to fight a corporate entity determined to minimize any financial damages to itself, citing its shareholders as the ones to which it must ultimately answer to…
Exxon claims that they are simply “exercising a fundamental right to appeal these damages, a right to which every American individual and company is entitled. This is a core value of our judicial system . . .†… Legal rights aside, there are very practical reasons for delaying proceedings as long as possible. For instance, in 1998 the Anchorage Daily News reported:
Apparently, delay pays. Exxon is earning $90,000 an hour, about $2 million a day or nearly $800 million a year, on the same $5 billion as long as the case drags on and the money stays in its coffers. As it stands now, if the appeals linger a couple more years, Exxon will have earned enough interest alone to pay the $5 billion plus the accrued interest.
In short, after the reckless destruction of the ecology and fisheries of Prince William Sound, Exxon’s legal strategy has resulted in over fourteen years (as of 2004) of costly court deliberations and the denial of the allocation of damage awards to the victims of the spill. The adversarial techniques deftly used by Exxon can be summarized as follows:
1. Retain the best attorneys money can buy and aggressively attack plaintiffs in every manner possible.
2. Hire scientists to collect and analyze data in an effort to “debunk†damage claims made by independent and/ or plaintiff-sponsored scientists, thus creating “reasonable doubt†through the selective use of “scientific uncertainty.â€
3. Deny all non-economic damage claims by attacking the credibility of independent and/or plaintiff-sponsored social scientists and preventing this data from being admitted as court evidence.
4. Use biased accounting strategies to overestimate costs to the defendants and underestimate the damages to victims.
5. Hire law professors and other legal scholars to publish legal position papers that support “legitimate†claims against punitive damages and monitor relevant, ongoing legal cases.
6. Organize a massive public relations campaign that “deconstructs†what really happened and “reconstructs†an “all clear signal,†pronouncing that the spill damages are gone and all victims (ecological and human) have recovered.Many of the aforementioned techniques are regularly employed by corporate defendants in mass tort cases in an attempt to win the case or, at least, minimize the costs of reparation and restoration of damages. Ultimately, these strategies serve to delay court proceedings by any means necessary for as long as possible, no matter how “frivolous†the legal challenge. Such delay tactics, available to corporations with “deep pockets,†exhaust the financial and coping resources of victims, their attorneys, and experts. Winning by attrition may seem unethical and brutish, but successfully operating within a system of adversarial legalism necessitates such tactics. As such, adversarial legalism becomes a game unto itself, with its own internal logic, language, and set of formal rules and procedures – a game disconnected from the real world in which lawyers for both the defendants and plaintiffs make decisions that may not reflect the best interests of their respective clients. Lawyers who profit from such a system have acquired greater incentives and opportunities to extend adversarial legalism even further.
How best to change this state of affairs?
Because the technological disasters that keep happening tear communities apart, Dr. Picou has a link to a program for peer listener training to aid those most affected by the BP disaster. Although the latest training sessions have ended, a show of interest in the training could possibly get more sessions scheduled. Head here to register.
Dr. Riki Ott, whose life changed in the wake of the Exxon Valdez spill, first used her training in marine biology to help the fishermen of her home in Cordova, Alaska, gain a voice in state legislation concerning fishing in Prince William Sound, a position which, after the spill, turned to defending her town and all the Sound’s people from being left behind by Exxon. After twenty years of seeing what happened to her town and to the Sound’s ecosystem, the health effects of the “cleanup” of the Sound, and following closely the tactics Exxon employed to keep justice from being served to those most affected by the 1989 oil spill, she came to some intriguing conclusions, culminating in this movement.
We are calling to amend the U.S. Constitution to abolish the legal doctrine of “Corporate Personhood,” which we define simply as the illegitimate notion that a corporation can claim political and civil rights to overturn democratically enacted laws. We are building a broad-based, multi-partisan democracy movement in the United States to address the reality that the federal courts have made democracy impossible.
Further explanation of her 28th Amendment idea is found in the final video of this bunch. I don’t know how much of a chance such an amendment would have in our current political climate, but I do know that things have to change. This era of technological trauma is not over.
Not by a long shot.
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