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?
The Danger in Not Asking Questions
May 31 2020
One day an acquaintance ran up to him excitedly and said, “Socrates, do you know what I just heard about Diogenes?”
“Wait a moment,” Socrates replied, “Before you tell me I’d like you to pass a little test. It’s called the Triple Filter Test.“
“Triple filter?” asked the acquaintance.
“That’s right,” Socrates continued. “Before you talk to me about Diogenes, let’s take a moment to filter what you’re going to say. The first filter is Truth. Have you made absolutely sure that what you are about to tell me is true?“
“No,” the man said, “Actually I just heard about it.“
“All right,” said Socrates. “So you don’t really know if it’s true or not. Now let’s try the second filter, the filter of Goodness. Is what you are about to tell me about Diogenes something good?“
“No, on the contrary…“
“So,” Socrates continued, “You want to tell me something about Diogenes that may be bad, even though you’re not certain it’s true?“
“No, not really.”
“Well,” concluded Socrates, “If what you want to tell me is neither True nor Good nor even Useful, why tell it to me or anyone at all?“
The man was bewildered and ashamed. This is an example of why Socrates was a great philosopher and held in such high esteem.
It also explains why Socrates never found out that Diogenes was sleeping with his wife.
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.