News

On juries and experts

June 29 2020

The right to a jury trial has been described, most recently this May, as “a fundamental right. It goes back centuries in our history, and it will never be removed at all.” (For the U.K. government’s latest proposals attacking this right and why they are not a good idea see here.)

Despite this, juries have not always been loved, especially by some in the legal establishment, including some judges, those who think that the law is far too important and complicated an issue for ordinary persons, who are simply not clever enough to understand. It uses the complexity beloved by lawyers to justify keeping the whole process within this charmed, closed circle, a legal elite. It is an argument often heard in relation to fraud trials, conveniently forgetting that sniffing out dishonesty does not need a degree, that it is often some of the apparently cleverest people – formally anyway – who fall for some of the biggest conmen around.

If you need convincing, look no further than the story of Wirecard, summarised by the Financial Times here.  It is a cautionary tale, one we have seen before, time and again. Remember Enron?Or Polly Peck? Or Theranos? It makes it all the more baffling why clever people fall for it over and over again.

The essential elements are usually the same:-

  • A new, often disruptive, entrant into the market or the repackaging of a boring staid company.
  • A charismatic CEO with ambitious expansion plans, an attractive story to tell and a talent for PR.
  • A novel way of providing a basic service, presented as a simplification, and which could be categorised into the “too good to be true” category. No-one is able to explain why, if it is so simple, others have not done this.
  • The use of some wonderful new technology. Everyone wants to be associated with this, even if the number of people keen on it is vastly greater than those who really understand it.
  • The use of complicated corporate structures and inter-company transactions, often in a variety of offshore jurisdictions, making scrutiny of the individual transactions and the company’s overall position much more difficult.
  • When critical or difficult questions are raised, responding aggressively with action from lawyers and PR specialists. Protection of reputation is apparently more important than responding to the substance of any criticism.
  • Rapid high growth, sustained year after year.
  • Becoming the latest “darling” of the stock market, investors and governments.

In all these cases, any number of highly expert advisors: analysts, accountants, auditors, bankers, lawyers and others seemed oblivious to what was going on. Did they choose to turn a blind eye? Or were their critical faculties simply dazzled by the fees to be earned?

What is perhaps different – and troubling – about the Wirecard story is the way regulators, in this case, the BaFin, seem to have abandoned its critical faculties, its willingness to probe behind the facade (surely an essential task for any regulator) and the need to listen to those voices who raised questions (from as far back as 2008) about the company.

Worse: not only did the BaFin not listen to those voices (investors, hedge funds, whistleblowers and journalists), it tried to take action against them, to shut them down, to prosecute them. The regulator abandoned its role as a disinterested supervisor and acted as if its interests were no different than that of the company.

How could so many apparently clever people be taken in? For the oldest reason of all: they believed what they wanted to be true, what they hoped was true. They formed an opinion then ignored any facts that did not fit. They ignored troubling messages or concerns because they came from the “wrong” sort of people: hedge funds and short sellers (boo! hiss!), foreign journalists doing down a national champion (double boo!) and so on. Shooting the messenger is so much easier than listening to an uncomfortable message.

Clever people are not immune from making these basic mistakes. Being clever does not necessarily make you clear-sighted. It does not necessarily make you courageous. Nor does it automatically make you curious.

There is an inestimable value in having an ordinary person’s view, in having people prepared to ask obvious, even stupid questions, in benefiting from the collective experiences, perspectives and opinions of a random group of 12 strangers, the wisdom of a small crowd, unencumbered by the sort of “groupthink” which can afflict those working closely together with the same types of people with largely similar perspectives.

Remember this when the lack of expertise of jurors is cited as a reason why they should not be involved in fraud trials. If expert and experienced people are so easily taken in, perhaps that expertise is not that valuable at assessing dishonesty and bluster and spin. If experts fail to ask obvious questions or fail to follow up on concerns raised, what value – really – does their expertise have?

 

Photo by Jon Tyson on Unsplash

 

 

 

 

 

 

 

Lockdown blues

April 21 2020

This film of a police officer telling a member of the public that if he doesn’t do what he tells him he (the police officer) will “make it up” and that he – rather than the innocent citizen – will be believed has been widely publicised – and criticised. The Lancashire Police have apologised for the officer’s “completely unacceptable” language and behaviour. As well they might.

No doubt lessons will be learned and training given. Well, let me summarise that training. There are three things the police should never “make up”: the law, offences or evidence. It really should not be hard to understand this. Or follow it.

The inevitable internal investigation has now started. There are a few points worth noting about the behaviour of the officer making these remarks.

(1) How likely is it that this was the first time this officer thought of saying he would make stuff up to get his way?

Any investigation will necessarily have to focus not just on this incident but on other cases where this officer’s evidence or statements or behaviour may have been critical to the outcome. If the investigation does not do this of its own accord, defence lawyers are likely to make themselves heard.

(2) Note the striking confidence with which he asserted his belief that his uniform, his status would automatically make him more believable. It is not so much the arrogance of the statement which is shocking but its truth. And it is precisely because it is (generally) true, that the officer’s behaviour is so reprehensible. Abuse of trust undermines the confidence which the public and police both need if policing is to work well – especially during lockdown when the police have been given unprecedentedly wide (and potentially oppressive) powers.

Abuse of trust at any time undermines the reputation of every other police officer, no matter how honest or hard-working. As the Lancashire Police’s apology put it: “It only takes one incident like this to undo the hard work of so many.” Quite.

And what of the other officer in the incident? You did notice him, didn’t you? The one who was standing by while this was happening and did not intervene. (The Lancashire Police did not feel it necessary to apologise for his conduct, inaction generally being seen – wrongly – as somehow less deserving of criticism.)

Why might that be? Maybe he did not think what his colleague was doing was wrong. Maybe he did but did not think he should intervene at that stage. Maybe he didn’t think he would get any support from his colleagues or superiors if he did. Or, worse, that he might be criticised or ostracised. (Perhaps the investigation will ask questions about this aspect too.)

Or maybe it was as simple as thinking that he should stick by his colleague. Esprit de corps, teamwork, loyalty to colleagues, to a common aim or work purpose, collaboration are all highly valued (from childhood onwards), trained for, rewarded. It is easy to side instinctively with “us” against “them”. It goes with the grain of human behaviour. Those seen as snitches are not viewed favourably. Little wonder then that people might find it hard to realise that loyalty to misbehaving colleagues is misplaced.

If police officers sometimes find this hard, despite the importance of their role, how much harder is it for the rest of us. So maybe we need to realise that creating the sort of culture where people do not turn a blind eye, where people instinctively challenge or call out wrong behaviour, takes something deeper and more sustained than just a whistleblowing policy, however well-written, and annual training.

Photo by Matt Seymour on Unsplash

Back to Basics

July 30 2019

Ever since the financial crisis started there has been a plethora of explanations about why traders and bankers behaved as they did.  Some have been purely descriptive: what happened and when, allowing us to marvel at the folly of it all, at least in hindsight.  At the time these clever financiers were praised by pretty much everyone from Chancellors down. There were very few pointing out at the time that the Emperor had no clothes.

But increasingly there have been attempts to use the insights gleaned from other disciplines to explain why what happened in the way it did. The latest neuroscientific findings were used to describe the biology of boom and bust (The Hour Between Dog and Wolf, for instance). Behavioural economics has had its say, as has nudge theory. Rather than nudging people to behave well, all the payment and reward incentives nudged financiers into doing what suited them financially irrespective of the effect on the customer and no matter what the expressed good intentions of the firm were. Goodness! Whoever could have predicted that, without a theory to explain it.

Psychologists have had their say, of course, though only a cynic might wonder about how much actual knowledge about the realities of life in the financial sector they have. No matter: all could opine merrily on the importance of culture in finance and on all the wonderful insights that these disciplines could bring to those seeking to manage and regulate the financial sector.

And now the anthropologists have got in on the act, as in this article by Gillian Tett. In it she points out how anthropologists have tried to analyse the cultural patterns, the rituals and symbols, even the words people use in finance to understand what was going on under the surface. In truth, the insights brought by anthropologists (at least as described here) are pretty obvious rather than thought-provoking; the article does not need them to be worth reading.

What is interesting, though, is how commentators on finance and perhaps also regulators are, perhaps unconsciously, making the same mistake as many of those traders and bankers. They are over-complicating, coming up with all sorts of theories and hypotheses apparently grounded in science or other social studies, described and interpreted by experts, using technical language to describe common human behaviours. Just as too many traders developed over-complicated products which they only half-understood and managers kidded themselves into believing that they had found a foolproof solution to valuation or risk management or any of the other difficult tasks they had, so there is a risk of developing overly complex explanations for why so many people behaved so stupidly or worse. The risk is that the more complex the explanation, the more people feel that it is all too difficult really to do anything about it or that this is something best left to the culture specialists, psychologists and other “ologists“.

Keep it simple might be the motto. In the end, by whatever means the conclusions are reached, what everyone in finance needs to remember is this:-

  1. Trust is at the heart of finance.
  2. Everyone in a financial institution is, in one way or another, managing risk.  There is no such thing as a risk-free product or institution.  Or, indeed, individual.  Understanding the risk you are running and managing it properly is what every bank, every employee in a bank, every customer of a bank, every shareholder in a bank, every investor in a financial product and every regulator of a bank is doing.  Or ought to be doing.
  3. Understanding properly is hard work.  There is no magic bullet, algorithm, theory, process, spreadsheet, AI or killer piece of management information which will do it for you. Thinking is often required.
  4. There is no way of eliminating risk.  Mitigating and minimising it: yes.  Eliminating it: no.  If anyone says otherwise (and much of the financial crisis was caused as a result of clever people thinking they had done just this and learning, painfully, that they hadn’t) they’re a charlatan or worse.
  5. Human beings, even clever ones (particularly them, it sometimes seems) do not behave rationally around money. Money and emotions are bosom pals. As any decent novelist or lawyer dealing with divorces or wills will tell you.  The “animal spirits” Keynes described do not just apply to market participants but to all of us.
  6. Managing people, understanding them, motivating them, inspiring and leading them, teaching them, setting them a good example, setting them high expectations and making it clear what the boundaries are, what behaviour will not be accepted, what crosses the line, helping them get past their frailties, working effectively with them is hard work, the hardest work anyone ever has to do.  And by far the most valuable – and rewarding.
  7. Finance is there to serve others, not itself.  It is a means to an end and the moment it (and the people in it) start thinking of themselves as indispensable, as set apart from the society they are part of, as entitled to special consideration and immunity from challenge is the moment when hubris sets in.  Nemesis will surely follow.

 

Photo by Lesly Derksen on Unsplash