Strategic Litigation for Trafficking Cases Conference June 9-12

From Thursday evening through Sunday afternoon, I attended this conference, co-sponsored by CHRD and the American Bar Association at a resort, approximately 40 miles east of Ulan Bataar. The majority of the attendees were lawyers from all over Mongolia who have been active in cases opposing human trafficking.  The conference was led by Dan Werner of the ABA and Ms. Amarjargal, or Amraa, the CHRD lawyer who directs the program combating human trafficking. Amraa speaks fluent English, and, in addition to directing the conference, played an active role in translating many of the social activities for Dan and myself.

The conference was particularly useful for me because it gave me significant insight into the actual litigation practices in Mongolian courts, and the difficulties that Mongolian lawyers face in obtaining justice, not just in trafficking cases, but in general. The Mongolian legal system has several advantages for public interest lawyers over the United States system: cases are resolved much more quickly. 

The Mongolian system does not have a discovery practice managed entirely by lawyers; instead courts have the authority to order parties to produce relevant information on the request of a party. I believe that American discovery practices have become major obstacles to justice, by dramatically increasing the cost of litigation, and encouraging lawyers, especially large firm lawyers, to spend inordinate amounts of time addressing trivial points of minimal importance to the case. So I see the absence of discovery as a potential advantage for Mongolian lawyers. 

In Mongolia, civil cases are frequently prosecuted simultaneously with criminal cases against wrongdoers. This also enables civil litigators to rely upon information obtained in the criminal prosecution, and, more importantly, the power of the criminal prosecution can be used to promote a settlement of the civil claims as well. However, there is some concern that a criminal defendant can sometimes minimize the criminal penalty by paying restitution to the victim.

During the conference, Dan and I were fortunate to have the assistance of Luke, whose full name I never did get, as a translator and bon vivant. Luke is a local lawyer, who is fluent in English, with an excellent sense of humor, and a connoisseur of fine alcoholic beverages. Obviously, he also translated Dan and my statements and presentations from English to Mongolian. Translating from Mongolian into English was very difficult because it was necessary to translate what had just been said while the speaker was continuing to speak, and Luke also needed to be aware of what was being said while he was translating. Nevertheless, Luke enabled us to follow the proceedings, even when the speaker was speaking particularly quickly. 

Thursday June 9. The agenda described activities to get to know each other after dinner on Thursday. After presentation of awards to two lawyers for their litigation efforts, Dan and I were challenged to play basketball with two CHRD interns. It was a rough-and-tumble game with an underinflated ball: no one kept score. We returned to the main lounge, where an impromptu party continued until about midnight. We were invited, and could hardly refuse, to sample various vodkas from all over Mongolia. Mongolian vodka has become my drink of choice here:  the most popular brand in Ulan Baatar is “Chinggis”.

Friday June 10 During the first day of the conference, Dan presented an overview of the American legal system, followed by presentations describing how "non-material” or what we would call compensatory  damages are handled in various jurisdictions. We heard presentations from Amraa on practices in European countries, a victims rights lawyer who described approaches that be tried under Mongolian law, and a psychologist. 

In Mongolia, there are horrible stories of traffickers luring young girls from poor backgrounds with the promises of a job, and then trafficking them abroad, frequently to China, where they are forced to work as prostitutes, and sometimes subjected to other atrocities, such as forced cosmetic surgery. When these girls return home to Mongolia, they attempt to pursue legal remedies against the traffickers. The concept is somewhat amazing to me: the United States certainly has its problems with pimps and sometimes organized sex trafficking, but I have never heard of a civil case brought in the United States against the trafficker, usually because traffickers cannot be readily located and it is practically impossible to civilly prosecute them. 

However, the amount of damages that are customarily obtained in civil prosecutions in Mongolia is ridiculously small. Damages are usually limited to economic damages, such as loss of earnings and medical expenses, and it does not appear that any trafficking victim has ever received a significant monetary award. Several cases were cited where the victim received 1 million tugrugs, about $800.  

We found time to enjoy ourselves on Friday as well. I managed to get up by 6:30 AM , so that I could do a hike of about an hour and a quarter in the spectacular backcountry near the camp. In the evening, I played a number of games of chess, and there was karaoke, in both English and Mongolian.  Dan and I sang the old Beatles tune Obladi Oblada, to the delight of the crowd.

Saturday June 11 On Friday, I had asked the psychologist how psychological damages in general, and post-traumatic stress disorder in particular, could be proved in Mongolia, specifically as to whether or not there was some recognized diagnostic criteria and whether Mongolian psychologist used anything similar to the Minnesota Multiphasic Personality Inventory. She acted as if she did not understand my question.

Dan and I offered to present an example of how psychological damages are proved in the United States. We reenacted the testimony of a psychologist that I used in a trial 10 years ago, to the effect that a victim of sexual-harassment suffered post-traumatic stress disorder. Playing the role of the psychologist, I gave "testimony” describing my clinical analysis of the plaintiff, the use of the MMPI in diagnosis, the criteria of the DSM-IV, in support of my “professional” conclusion that the plaintiff suffered damages. The presentation was enthusiastically received, and the Mongolian judge who presented after us commented that such testimony would be useful in a Mongolian setting as well.  

We heard from two judges, one describing the legal procedures that could be used in Mongolian courts to establish nonmaterial damages and one describing other statutes that might be appropriate, and from a social worker, describing the problems in obtaining evidence of such damages. 

In the afternoon, and continuing until well past the dinner hour, the participants divided into groups to prepare an analysis of cases, which they then presented to the assembly. The presentations indicated a thorough analysis, and that the participants had learned new legal strategies and new methods of presenting evidence in the two days of the seminar. After dinner, with a fair amount of humor and stage presence, orchestrated by Amraa, everyone, including myself, was awarded a certificate of attendance. When I return to the United States, I will see if I can get CLE credit for this program: it was, after all, co-sponsored by the ABA, which I am sure is a certified CLE provider. 

Recreationally, I had gone for a trail run and hike early Saturday morning. Dinner was late, and both Dan and I were somewhat tired. Nevertheless, after talking in the ger for about an hour, we had the thought of going down to the lounge for one glass of vodka before going to sleep. I finally got to sleep at about 3 AM, Dan told me on Sunday that he had been up till about 4:30 AM. We had considerably more than one glass of vodka, joined the dancing (Dan and his partner, a CHRD staffer were declared the winner of a dance contest), participated in a variety of drunken games, and were required to sing at one point for our failure to participate in a particular dance (I sang "If you ain't got the do re mi”, Dan sang "the Sloop John B”).

Sunday June 12 For some strange reason, breakfast was very late on Sunday. After breakfast, I started up the hill for a hike, and ran into Baigala and two other conference participants. We did a leisurely hike to a high point: unfortunately, since I had not been expecting to hike with anyone else and did not even plan to go for very long, I did not have my camera, and could not record any of the posed pictures that everyone else took of each other on the mountain. 

There was some work on Sunday: the conference participants discussed their various cases, the problems they had had and the cases won and lost. This was extremely interesting for me, to hear practical experiences of what actually has occurred in litigation.

After lunch, Dan and I had hoped to go for a walk up the hill (Dan had had relatively little opportunity to explore the backcountry. Dan, like me, is a former rock climber who was very excited about the number of potential climbing routes on the rocks and mountains in the area), but there were a series of thunderstorms, and it was not entirely clear that we would be able to get a ride back to Ulan Baatar after the bus took all the conference participants home.

The Baigal camp

view from a high point

another view of terrain

dancing on the first night

Dan, me and Luke, after our presentation

responding to a question as a Harvard trained shrink

my favorite summit - also the one climbed with Baigala et. al.

Ger sweet Ger

The ubiquitous Gaala was also at the conference: is a serious ping-pong player and we  played a fair amount. Although his official role seems to be a CHRD driver,  he is an artist by profession. He seems to be at all CHRD events; and is frequently at the CHRD office. We assumed that he would have been our source for a ride home, if we had wanted to stay to do a hike.