I'm thinking his case is most likely fucked. My first impression is that collateral estoppel will not be precluded by the con clause. It was already litigated. He was able to confront these issues. Efficiency and full faith and credit seem to point towards collateral estoppel.
I'm not quite sure what I'm supposed to be typing here, but I guess the question I'll answer is "do I think the evidence justifies Donzinger getting another appeal" - based on what we've seen so far, I'm not sure the evidence in the record does present such a case for Donzinger to get another shot in court. But, I also think, based on what we've covered in class, that there may be evidence that's not in the record, that could justify such an appeal. Something just seems *off* to me about this whole case, and I don't feel able to figure out what it is.
From a procedural point, I do think it is unfair to use the other civil judgment against him to disbar him. But looking at it from the "reasonable person's" standpoint (whatever that means) the evidence seems overwhelmingly stacked against him. From reading the opposition brief I would say that Danziger should lose simpy because I believe in the reasonable person's view.
I think that collateral estopped should not prevent him from raising these issues again. I am persuaded by his argument that these findings are inconsistent with the typical findings of Ecuadorian appellate courts and the court should defer to that forum. I also feel that the difference in resources necessitates him to have another chance to prove his case.
If I were a Judge on the NY-COA I would say that there are possibly interesting issues about Collateral Estoppel being raised here, but I would find these facts to the wrong ones to take up this discretionary appeal. I would question why we are the first court to receive challenges to the factual findings Judge Kaplan made. Why should we, a state court, in effect disturb factual findings made by a federal judge that went unchallenged in the federal system? What signal would this send about the extent to which our (NY-COA's) final judgments should be respected by other jurisdictions? If we cannot trust factual findings made by a federal judge that went unchallenged on appeal, can any judgment be credited by other jurisdictions? So I'd say Donziger that he should move for reconsideration of his disbarment if and when the factual findings by Kaplan are successfully challenged in federal court.
Although I found the affirmation in opposition persuasive, I do not agree with it. Even if the case had been fully litigated, I don't think Donzinger's case has ever been treated in a fair manner. With that said, I don't think permission will be granted.
I found convincing the idea we discussed last class. Relying on Judge Kaplan's finding that Donziger is unfit to practice law (without allowing Donziger the opportunity to confront the witnesses against him) poses a constitutional problem