Month: Feb 2021

2021ii26, Friday: the small things.

JSJ1 Comment

The big things are critical. For sanity’s sake, the small things are still more so.

And… breathe.

Short thought: Following the lifting of our self-isolation on Wednesday, all three of us (self, spouse, daughter) went to get re-tested. We’re lucky enough to live in Southend Borough, which has a no-questions policy re testing; anyone can get it, any time. So we sat in the car, probed nose and mouth, coughed and sneezed as a result, and handed the results out through the window.

This morning: negatives all round. I could have danced.

So again, to the beach. And I was reminded, yet again, of something I learned long ago whose truth has become still more self-evident over the past year. 

The small things matter.

Which isn’t to say the big things don’t. Of course they do. And they can be hell to cope with. But they’re far, far harder if you don’t have a substrate of small joys to see you through the hard times. 

I know I’m lucky. My work is plentiful. My family are wonderful. My friends and colleagues are smart, thoughtful and caring. I have more luxury to look for the small things, perhaps.

But they’re all around us. Like this morning. Barely a breath of wind, the water lapping at the sand. And as I stood still at the littoral, the quiet whisper of the wavelets filled me. 

Small things like that. Priceless.

Someone is right on the internet: On the subject of small things (well, near enough), the Atlantic has something that rings true. I won’t spoil it – it’s a very short piece – but it sings the song of adapting one’s expectations to the circumstances:

Strive for excellence, by all means… But lower the bar, and keep it low, when it comes to your personal attachment to the world. Gratification? Satisfaction? Having your needs met? Fool’s gold. 

Read the rest. Worth it.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii24, Wednesday: freedom.

JSJLeave a comment

10 days of self-isolation is over, and the seaside beckons. Also: what the Emperor’s New Clothes can tell us about whistleblowing.

The Thames Estuary. This morning. After 10 days indoors, I promise you this was like the Caribbean to me…

Short thought: My personal (and family) lockdown is lifted. My symptoms are pretty much gone. A quick drive down to the sea this morning felt simply wonderful. There’s nothing like fresh air and wide horizons when the furthest vista you’ve seen for 10 days is your own backyard fence. Joy, unconfined. Literally.

Someone is right on the internet: I’ve long had a professional interest in whistleblowing. As an investigator, a great deal of work comes from them. As a barrister whose practice includes employment, whistleblowing forms part of a surprisingly large proportion of claims. They can be tricky to bring home, since one has to prove not just detriment (or dismissal) but that the whistleblowing disclosure is the main (for dismissal) or a significant (for detriment) cause of the employer’s decision. And the larger the employer, the trickier that causation can be to show.

Obviously, every situation varies. And not all – even not most – whistleblowers are the “keep my identity secret” kind. Most disclosures are overt: employers sometimes forget that if an employee raises a concern about whether the company is acting lawfully, or safely, and does so with some belief that it’s in the public interest, that’s whistleblowing – even if all it amounts to is telling their boss to her face what the problem is because they don’t think she knows, and she should.

But in my experience there’s a constant: most whistleblowers aren’t doing it for fun. They’re doing it because they think they have to, or ought to. And no-one sues on it unless they don’t have any choice.

This is a point made by Margaret Heffernan, author of Wilful Blindness (a book I adore, and which should be on the shelf, or Kindle, of anyone interested in how cognitive bias – ours and others’ – can play hell with our decisions and lives), in a recent FT piece. (Sorry, the paywall will only allow three clicks on this. Wish it were otherwise). She notes:

While the popular image of the whistleblower is typically an eccentric loner, the truth is more prosaic: whistleblowers are likely to be loyal employees, passionate about high standards, who go outside their organisation as a last resort when nobody takes them seriously. They aren’t defiant troublemakers; they’re disappointed believers.

I agree. Which isn’t to say that some aren’t eccentric to start with, or perhaps more often driven to eccentricity, even obsession, by the whole experience. But her point is a straightforward one. Organisations are fundamentally inimical to people pointing out problems; yet without them, the organisation can’t possibly improve. As Heffernan points out, this is a “tragic waste of knowledge”: not just for the organisation, but for all its stakeholders.

It boils down to this. Everyone knows the story of the Emperor’s New Clothes. I used to use it in training sessions; the laugh, as I described the child shouting out from the crowd, “Hey mister, I can see your bum in that,” was a critical means of opening the door to a discussion of why problems needed to be shared; and acted to reinforce my promises that if it was a choice between my job and breaking a whistleblower’s confidentiality unless I was compelled by law to do so, I’d be the one taking the walk.

Sure, it’s funny. But everyone who’s ever heard that story has asked themselves what happened to the child afterwards. Did she get a cookie? A pat on the head? Or did several large soldiers pop round to have a word with her parents later, to drive home the message about it being safer if you bring up your kid to be seen and not heard?

My cynical side always suspects the latter. And certainly organisations tend in that direction: I’ve several times had senior managers tell me I had to disclose the name of a whistleblower. I never have, including the time a CEO threatened to fire me if I didn’t. But honestly, as Heffernan says, a smart company will listen first.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii22, Monday: tl;dr.

JSJLeave a comment

Lord Leggatt is a judicial hero. And, as we now know, he understands that somethings really are too long; didn’t read. Also: creative conflict at its best.

Short thought: Smarter and better minds than mine have crawled all over the Uber judgment, handed down by the Supreme Court on Friday. It’s justifiably been the centre of attention in the employment law world: although obviously deriving from a specific set of facts, it nonetheless lays down a clear line as to whether companies can seek to dictate through contract terms whether their staff are workers – to whom they owe at least some employment rights – or independent contractors, to whom they owe nothing but payment for services rendered.

The tl;dr version: they can’t. It’s a question of statutory interpretation, not pure contract law. And it’s the reality of the relationship, not the words on the page, which make the difference.

Big news. Gig economy “employers” will have been poring over their business models and contracts over the weekend. Many, I anticipate, will find themselves in (for them) uncomfortable territory. I’m of the view (for what it’s worth) that the Supreme Court has gone the right way on this. That said, what will change straight away? Perhaps not much. Individual workers may need themselves to sue, given that the government seems notably uninterested in doing anything about it themselves. (The post of Director of Labour Market Enforcement, occupied on an interim basis by Matthew Taylor, falls vacant at the end of this week. He offered to stay in the job for nothing. He was turned down. Apparently none of the candidates were suitable. So clearly this wasn’t a high priority.) And as we’ve seen, the backlog in the employment tribunals, largely thanks also to government policy, is vast.

Among the mass of commentary, Jason Braier (unsurprisingly – his #ukemplaw Twitter form is near-unrivalled) has one of the best explanations. Fifty-plus tweets, but worth following through all the way. Although a pupil at our chambers, Ian Browne, managed to sum the whole thing up beautifully in two paragraphs:

But it’s not Jason’s (or indeed Ian’s) splendid work that I want to point to. No; it’s the magisterial judgment itself – the work of Lord Leggatt, a relatively recent addition to the UKSC. Friends and colleagues who’ve appeared before him are fans; even those he’s monstered with his questions or found against. I haven’t risen to those heights. But he was already one of my judicial heroes thanks to his judgment in the case of Gestmin v Credit Suisse, which I wrote about recently as the starting-point for the acceptance by the English courts (the Commercial Court, at least) that the fragility of memory was a critical consideration in how justice could be delivered.

Well, Lord Leggatt has done it again. We’ve all done that thing where you turn to the back of a judgment to find out the outcome, only to find there are 50 paragraphs of obiter addenda to wade back through. Not so here. In a glorious judicial tl;dr of his own, and perhaps in the knowledge that many reading a judgment with such significance for working people won’t be lawyers, Lord Leggatt gives the outcome upfront in paragraph 2, in just 39 words. Bless the man.

Someone is right on the internet: “Why can’t we just get along?” Because sometimes, just sometimes, we need to argue.

Argument is not, in itself, a bad thing. Debate and disagreement are like mistakes. Without them, you can’t learn, or grow, or find out you’re wrong. And if you can’t do those, there’s no hope for you – and no point in listening to you.

In this bit of writing, Ian Leslie calls on two examples. The first is an interview between noted right-wing poster-boy Jordan Peterson and Helen Lewis. Lewis is a great reporter, but this interview caused lots of people to accuse her of malice or unfairness, or (grow up, people) of some kind of “woke agenda”, in how she treated Peterson. I can’t see it. As Leslie suggests, she seems to be engaging in – to British eyes – a perfectly normal piece of searching and probing, but by no means unfair or aggressive, interviewing. To which Peterson seems to respond in a notably thin-skinned, take-it-personally manner. Odd, for someone whose shtick seems to be all about people toughing up, taking responsibility and stopping with the whining.

But it’s the second I really loved. You’ll have to scroll all the way down for it, but he describes a row (apparently well-known to Beatles fans, which I’m not particularly) between Paul McCartney and George Harrison during a rehearsal for a TV performance. Apparently it’s cited as an example of why the Beatles split, but Leslie instead sees it as an example of how conflict between collaborating artists can take their creativity to still loftier heights:

Maybe this won’t be interesting to anyone who isn’t a Beatles nerd but even if you’re not, isn’t it incredible have a raw and unfiltered record of one of the all-time great creative collaborations, as it happens – tensions, irritations, disagreements and all? If it is a little boring, that’s interesting too – it shows how magic can grow out of a long series of banal interactions. Anyway – it’s during this extended argument that Paul coins a favourite quote of mine, applicable to any creative process: “It’s complicated now. If we can get it simpler, and then complicate it where it needs to be complicated.” Whether you’re stuck on a song, an essay or a coding project, this is great advice: strip it back to its simplest form and then let the complications force their way in. (A little later, Paul rephrases it: “Let’s get the confusion unconfused, and then confuse it.”)

“Get the confusion unconfused, and then confuse it.” Wonderful. My new theme song.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii19, Friday: “Sleaze”… and a Free Man of England.

JSJ1 Comment

Rabbie Burns was right. We need to see oursels as ithers see us – particularly where corruption is concerned. And on another tack: a lovely court victory over a dangerously deluded sovereign citizen.

Short thought: The immortal Robert Burns was right when he asked for the gift of seeing oneself from the outside. (From To a Louse, although personally I prefer To a Mouse, which introduced the phrase “the best-laid plans of mice and men” into the language.)

This gift is particularly important for those of us in so-called “developed” countries who work on anti-corruption. It’s fatally easy to look at a healthy CPI score, fold one’s hands over one’s stomach, and see corruption as somebody else’s country’s problem. Instead of looking at what happens here from the outside – and judging it accordingly. (Joseph Cotterill, now the FT’s southern Africa bureau chief, used to do this beautifully, as this Twitter thread delivering a stiletto to the kidneys of UK politics in 2017 demonstrates.

I’ve long felt the UK has a particularly acute failing here. The first general election I remember in real detail was the 1997 one. In the runup to it, the papers were full of allegations of “sleaze”, suggesting something rotten at the heart of the Tory government which was by then 18 years old. 

But here’s the thing. “Sleaze” was a catch-all term, encompassing sexual wrongdoing, political favour distribution and what, anywhere else, we’d call corruption or bribery. By using the term, not only did we elide these differing concepts into some generalised moral failing. We also avoided having to look in the mirror and admit it: we’ve got a corruption problem. Which both rubs our collective ego, and protects those in power who are quite happy for the “you scratch my conscience, I’ll drive your Jag” status quo to continue.

And this is where Burns’s gift would come in so useful. A good exercise when looking at some bit of skulduggery involving the abuse of power in the UK is always to say: if this happened in Nigeria, or Afghanistan, or Indonesia, or Venezuela, or any other country in the lower reaches of the CPI, what would we call it? If we’d call it corruption there, we’re dishonest not to do so here.

Take a classic small-scale example. You’re on a local authority planning committee. Your child is a tennis player with semi-pro. A local tennis club has a great record for training young people, but a waiting list. You’re having lunch with a friend, a developer. His husband is on the club membership committee. Your child is mentioned. The waiting list unaccountably shortens soon afterwards. When a planning application from the developer next emerges, do you disclose your child’s new-found membership?

Change the story a bit, so it’s happening in a more ostensibly corruption-prone place. Change the tennis club to a university place or an internship. Change the local council to a national quango. Would it be corruption? Would it, at the very least, require disclosure and probable recusal?

I think so, yes. But I wonder how many people, in the UK context, would have thought so. 

As I said, this is not a new thought. But it’s been sparked anew by two things.

First, my jottings on fraud were responded to by a former colleague whom I deeply respect, Mark Ward. Mark was a tech correspondent at the BBC, but is now senior research analyst at the International Security Forum. Mark and I are both baffled by how a crime with such huge (both deep AND broad) impact can be accorded so low a priority. Now, I can’t help wondering if it’s part of the same picture: a cross between wilful blindness and contentment that someone else is paying the bill when the grown-ups keep doing what they do.

Second, a throwaway line in a newspaper report noted that the government’s anti-corruption champion, John Penrose MP, is married to Baroness Dido Harding. The former head of TalkTalk (widely regarded as a considerable failure in that role, having presided among other things over one of the most egregious corporate data protection breaches in recent UK memory), who was put in charge of Test and Trace without any competition or assessment. And who is widely regarded as having failed extensively in that, as well.

Yes. The person in charge of anti-corruption is married to someone who’s seen (with a good deal of justification) as a major beneficiary of nepotism.

Again. Put this in another less self-satisfied country. What would it look like? How would it be viewed?

(Update: an earlier version of this got Dido Harding’s old job wrong. She was made CEO of TalkTalk, not Carphone Warehouse, when the former was split from the latter.)

Someone is right on the internet: I’ve been fortunate never to have had to deal personally with so-called sovereign citizens. Those people who in the US start talking about black helicopters and the illegitimacy of all things federal; and who over here tend to start blathering insanities about Magna Carta (thank the blessed David Allen Green for wading through the muck on that one).

Sarah Clover, from King’s Chambers, wasn’t so lucky – but at least it’s produced a fascinating case, where a gym owner in Preston trotted out many of the greatest hits which made him – as he put it – a “Free Man of England”: governing only by consent, a redefinition of the Common Law, and the non-applicability of the Coronavirus Regulations because they were a “statute of legislation”. No, I don’t understand that tautology either. 

Anyhow, read Sarah’s piece. It’s great.

Only one problem. The poor man seems not to have mentioned Magna Carta. Missed a trick there. No doubt poorly advised…

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii17, Wednesday: the other shoe.

JSJLeave a comment

So it’s four days since I took a test, three since the result. Not much in the way of symptoms. How long, o Lord, how long…

Short thought: This is weird. Day four (at least) of having The Bug (again, I think). And aside from a mild headache and some fatigue: nothing to speak of. Heart rate? Normal. Blood O2? Normal. Temperature? Normal*. I’m in limbo.

I confess I hadn’t really thought through what it would be like to get a positive test while asymptomatic. I realise that’s a failure of imagination on my part. But it’s odd. Here I am, self-isolating as best I can, knowing that in theory the clock runs out on that next Tuesday night – but also knowing, as far as I’ve been able to find out, that while symptoms mostly emerge within 5-6 days of infection, it could be a couple of weeks.

So if I was tested on Saturday, in theory I could be sitting here happily for another 10 days or so and still get the whammy at the end of it, even if that’s at the far end of the probability curve. 

In the meantime: limbo. Bayesian reasoning doesn’t help, because I haven’t got any more useful info than I had on Sunday. The lack of major symptoms to date isn’t a helpful data point because of the lengthy incubation period. The fact that I’ve no idea when, before Saturday, I picked it up means that period in itself is unknowable. (Which leads me to rack my brain unhelpfully. Where was it? The 20 minutes in Waitrose last Thursday? The half-hour in Tesco the day before? The three minutes in the pizza takeaway on Friday night? The five minutes picking up coffee on Saturday morning? When was Day One, really? There’s been nowhere, and no-one, else. And the rest of the family have been even fewer places than me.) Perhaps if we get to the end of the week I can adjust my priors – but the potential risk to others is so high, I might discount even that.

Even then, is it a false positive? Am I an asymptomatic (mostly) carrier? Or are the T-cells from last time doing a good job this time round? No idea. No way of having one. Sigh.

So here we go. Sit. Wait. Wonder. Fret. But also thank God, the stars and whatever any of us believes in that – thus far at least – I’m getting off far, far more lightly than most. Amen. 

(And yes, I know that given the above this feeling is a bit premature. Give me this one. Ok?)

*Thank you, Apple Watch. A gift to hypochondriacs everywhere, although in this instance pretty useful.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii15, Monday: Damn.

JSJ2 Comments

Positive test. Feeling OK, but probably won’t. Please forgive me, but this may not be a priority till I’m through…

Short thought: It’s not even two months since I started doing this writing business on a regular basis, and I’m already taking a break.

That said, I think I’ve got a pretty good excuse. A Covid test I took on Saturday came back positive.

Right now, the worst of it is a moderate headache and a stuffy nose. But I imagine it’ll probably get worse. My primary worry is wife and daughter: they’ve both come back with recent negative tests, but that doesn’t mean I can’t infect them. So my life for the next week or two (at least) is the front room and the study. (I recognise I’m very, very blessed to have that much space available.)

I hope you’ll understand if I don’t prioritise this writing till this is over. I may write stuff – it might actually be therapeutic. But please forgive me if that idea slips down the back of the sofa. I may stick to the odd SIROTI – they’re fairly straightforward. Hope that’s OK.

Of course, this either means I’ve managed to catch it twice, or that godawful bug I had in March/April last year wasn’t Covid after all. I rather hope for the former; last time was horrible but relatively short. I could live with that again. In contrast, I’m petrified of long Covid: since I’m self-employed, that would be financially catastrophic for my family. Save us from that.

Fingers crossed, people. See you in a bit.

Someone is right on the Internet: While we’re on the subject of The Bug: I’m not the only one to be staggered by Taiwan’s handling of this thing. I remember a headline in December saying – I think – that they’d just had their first new case in seven months. Not death. Case.

Total deaths: 9. Total cases: under a thousand.

Wow.

It’s a place which deserves closer attention. Not just because of that, and not just because – in TSMC – it has one of the most important and critical chipmakers for the world’s electronics. But for so many other reasons.

I won’t bother to enumerate them. I’ll leave that to Noah Smith, who knows far more about the place than I do.

All I can add is this: one of my good and dear friends, my ex-boss Hui Chen, is Taiwanese-American. And she’s been in Taiwan pretty much throughout this madness. The thought that someone I care about has been in practically the safest place on the planet is a bright spark in a dark universe. Thank goodness.

(Noah also knows a lot about Japan. This piece, about Japan’s interwar history of fascist coups which failed in the short term but which arguably succeeded in aggregate, is sobering when one thinks of the 6 January affair, and Trump’s recent acquittal.)

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii12, Friday: Different ≠ worse.

JSJLeave a comment

Why section 3 of the Unfair Contract Terms Act 1977 has a lesson for our polarised world. And something special about the spiritual geography of offices – those places we may miss more than we know.

Short thought: I’ve rambled before on the power of analogies for advocates. I was half-convinced anyway, before Edmund King QC (RIP) pushed me all the way. It’s a bit like when I first found out about the Dunning-Kruger effect*: its explanatory power was such that examples suddenly started popping up everywhere. 

(To be more precise: they were there anyway. I just didn’t have a name for them. Like that cognitive glitch when you think about red cars and then notice them everywhere. They were always there; your conscious mind simply had no reason to single them out before.)

A fresh one popped into my head when I was prepping for yesterday’s hearing. In the end I didn’t use it: the judge found for us on another ground, and agreed with us on this point without me really having to argue it. But it set me thinking, about how easy it is to overlook how different doesn’t have to be better or worse.

The situation was this. My client had bought an expensive hospitality package for a sporting event from a vendor; the vendor didn’t come through, but offered them a different package claiming it was an “upgrade”. Among several key issues was how to make clear that something can be substantially different without having to be inferior. The point was for the sake of s3 of the Unfair Contract Terms Act 1977, which means a business offering another business a “substantially different” product from what they’d promised can only rely on a get-out clause in the contract if that clause is objectively reasonable. The point being that if (but only if) the product was substantially different, I could bring in the (genuine) unreasonableness of the clause in question.

The analogy I came up with: Imagine you’re a computer vendor. Your client wants a PC. You provide a higher-spec Mac. For many people – myself included – this is absolutely an upgrade. (Don’t flame me, people. I’ve used both platforms side-by-side for decades. I’m allowed.) But that’s irrelevant. For a PC user, the higher spec doesn’t matter. There’s a material and important difference. And any customer would reasonably be entitled to a swap or a refund.

(It works the other way round, too, of course. I realised this when I first used a PC for work, after always using Macs, and got horribly confused that there was no menu bar at the top of the screen. The lack of a Start menu must do the same for PC-to-Mac switchers. I feel the pain.)

Why did this stick in my mind? Well, with polarised politics and with-me-or-against-me thinking has come, I think, a diminution in our preparedness to consider that sometimes people just see things differently – and that sometimes, that isn’t a bad thing. When that different outlook causes real harm and power imbalances, then by all means we should act. But the starting point has to be an acceptance that everyone has the filter of their own lived experience, colouring what they see and how they understand. And many, if not most, of the distinctions will be just that. Not better. Not worse. Just different.

It’s a bit like steel-manning. Start from an assumption of good faith. Try to see and understand. Test your own assumptions. We may be stuck with polarisation for a while; it’s useful for a certain type of politician who cares more about the short-term boost than the long-term catastrophe, and sociopaths like this are sadly in the ascendant. But each of us, in our private lives, can make this work. And the smallest change can echo outwards. 

*I feel obliged to mention this recent piece seeking to debunk a chunk of what most people understand to be the Dunning-Kruger effect. I’m not wholly convinced; the effect’s application seems anecdotally to be too prevalent. But I’d be dishonest not to include it. 

Someone is right on the internet: Calling Paul Ford a writer is like calling Thelonious Monk a musician. It’s true, so far as it goes. But that’s not very far. Paul Ford is also a software designer, and much more. 

Many geeks who didn’t know of him before came to know and love him from What is Code? (on Bloomberg, so a metered paywall), a long read – in fact, at 38,000 words, practically a novella – about what coding and programming was really about, and like. It’ll take ages to read. You’ll need a cuppa, or three. But if you are even slightly interested in how the software business works, and how people write and create it – and in our world today, how could you not be? – it repays the investment several times over.

Now he’s done it again, albeit far shorter. The Secret, Essential Geography of the Office in Wired (also a metered paywall) does more to describe something essential about how workplaces function in 1,200-odd words than I’ve read in years. The geography he talks about isn’t just physical; it’s social. And it’s temporal. It’s both beautiful, and achingly painful in its sometimes uncomfortable sociological implications. 

And it’s recognisable. He mentions being told of specific spots in one workplace where you can go to cry; and I remember my time at BBC TV Centre, with its dozens of sometimes half-hidden staircases, and a spot on one – just between the fifth and sixth floors – where I went to cool off after an argument. And the joy of the balcony on the front of the building, facing east across London, where on an early shift – if you timed it right between stories – you could make it up there just in time for sunrise.

It’s different now. A Chambers is more of an interconnected set of separate worlds than a single entity. Each room is distinct; hierarchy, at least in our Chambers, is far less noticeable. (It may be different in more traditional buildings on staircases like an Oxbridge college.)

But we’ve still got a back staircase. Echoing bare stone steps, worn at the edges by generations of advocates. And amid the lockdown, having been in Chambers only four times since March last year, is it strange that I miss that staircase almost more than anything else?

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii10, Wednesday: “Conspiracy without the theory.”

JSJLeave a comment

Some excellent, if depressing, writing on the modern prevalence and abuse of conspiracy theories. But also: fantastic new knowledge tools for Mac/iOS users.

Someone is right on the internet: I remember my first argument about conspiracy theories. It was decades ago: I was in India, on a gap year, in a cafe somewhere in Rajasthan. Jaisalmer I think, out in the Thar Desert. And some other Brit was expounding on some conspiracy or other. I took the other side: what I now recognise is the classic position of noting how improbable it was that everyone involved could collaborate so perfectly and secretly. I can’t remember what it was about; probably the Moon landings.

One of the many depressing things about the past few years has been the proliferation (and popularisation by people you really wish knew better for selfish ends) of conspiracy thinking, to genuinely poisonous and damaging effect. This piece does an excellent job of walking through – as it puts it – their “enduring allure”, noting as they do that the USA was founded on a conspiracy theory of a sort, and that “losers” in politics often turn to conspiracy theories and paranoia to explain the outcome. (A classic piece of writing, Richard Hofstadter’s “The Paranoid Style in American Politics”, noted this tendency more than half a century ago. He’s no more wrong now than he was then; I suspect we’d see strong echoes here, too.)

But then the piece takes a darker and scarier turn, noting that the turn now is towards – as the authors put it “conspiracy without the theory”. By which they mean the old days of obsessing over bullet trajectories (Kennedy) and flag shadows (Moon landings) are gone. Who needs actual facts to analyse when instead you can disappear down a rabbit hole of assertion like QAnon – something which, as has been noted, seems almost as tailor-made to deliver addictive dopamine hits to its adherents as a computer game?

Compared with this, the innocent era of the Bush administration – when people were shocked, shocked to hear an anonymous US government source declare that they “created their own reality” in contrast to what he dismissively referred to as “the reality-based community” – seem like halcyon days.

It just works: Those who’ve been reading my stuff for a while will be aware of (and may fairly despair of) my on-off search for the right tool for taking notes and keeping records. Scrivener, Ulysses and Notion have all come in for favourable reviews – and are, without a doubt, fantastic pieces of software. For the right user, each of them is probably spot on.

But none have settled for me. Scrivener’s clunky sync was a killer. Ulysses’ clumsy search and less-than-ideal tagging frustrated me intensely. Bear – which I’ve only mentioned in passing before – is an excellent “dump stuff for later” tool with the best tag system I’ve come across, and I still use it for that purpose; but is just too “flat” for my purposes. (I need ways of keeping info about particular cases together without relying on tags or keeping everything in a single file.) Notionwowed me with its versatility, but I need reliable offline working and easy import-export, and that isn’t it.

At least I’ve realised what my priorities are by now. Not all are deal-breakers, but all are important:

  • Portability. I don’t want my stuff locked up in a format or location I don’t control. So ideally files on the desktop or in a cloud share I trust, and Markdown as the format. 
  • Easy export. I need to be able to dump stuff into a PDF or Word document easily, with minimal formatting faff. 
  • Bringing stuff together. I need to have everything about one topic easily accessible.
  • Search. There’s no excuse here. Rock-solid, no-brainer universal search is essential. If you make me work for it (Ulysses, I’m looking at you), that’s a critical fail.
  • Linking, in both directions. I’d forgotten how much I love this. Not only must I be able to embed links to other files/documents in the system into any other file; ideally I want to see what links to the thing I’m looking at now. This is backlinking; it’s a very old-school hypertext function, but now I’m using it again I’m staggered how I survived without it.
  • Multi-platform. Being limited to the desktop doesn’t work for me. Admittedly my new machine is lovely; but my workflow absolutely embraces phone and iPad. I need convincing to do anything that blocks that.
  • Multi-window. I need to see two or three things at a time. 
  • Speed. I’m lucky enough to have good kit. If the software slows it down, that’s unforgivable. I’m looking at you, Word.
  • Keyboard shortcuts. Don’t force me to use a mouse or trackpad any more than I have to.

In our new no-paper world, I’d very much recommend anyone else thinking through their own priorities. I’m very happy to discuss with mates what they need, and what might fit.

Me? Two new tools have presented themselves, both of which tick almost all these buttons. Both promise shortly to tick them all, although we’ll see what those promises are worth. 

First, there’s Obsidian. This is desktop-only, for now, which is a real pain. But it’s wonderful: in essence, a smooth, keyboard-led take on a Markdown wiki and knowledge handler with everything stored locally as individual text files, back- and forward-linked to high heaven. It’s not for everyone: it’s a kind of throwback to a primarily text-heavy world. But I just ran a 10-day hearing with everything in Obsidian: a master page for the case, with pages branching off (in separate panes) for each witness’s evidence, for my own notes, and for important background. All cross-linked and lightning-fast.

Then there’s Craft. I found this late last year, and frankly I don’t quite know how to describe it. It’s got some (though not all) of Notion’s virtues – a block-based structure where each paragraph on a “page” can easily have links, formatting and other things defined by easy keyboard shortcuts, or be turned into a link to a sub-page which in turn backlinks smoothly. It isn’t as versatile as Notion, but it’s happy offline, it’s quicker and smoother, and its exporting is excellent. Initially it was single-window, but that’s been sorted now. It’s cross-platform all the way, too. The one fly in the ointment is that right now it stores its own data; but its developers promise the ability to host data wherever you want within weeks, and their pace of evolution is excellent, so I’ve some faith they’ll manage it.

For the moment, I’m sticking with Craft. It’s smooth, it’s elegant, it’s designed by people who clearly care deeply about their users, and much as I love Obsidian (and I do), for now cross-platform ease is too important to sacrifice. I’d strongly recommend it.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii8, Monday: The intellectual dishonesty of pushing buttons.

JSJ3 Comments

New rule: if you use a dog-whistle, I’ll stop reading. Fair enough? And a lovely rabbit-hole for word-loving geeks.

Short thought: By way of a tangential follow-on to the stuff on tools for thinking the other week, there’s been something else on my mind. And I recognise that I may be about to sound doctrinaire, narrow-minded, closed.

Which is ironic. Because that’s more or less the charge I’d level at the people to whom, I’ve decided, I’m not going to bother reading any more. 

That’s not entirely correct. I’m not shutting people out altogether because of something they write. I’m shutting the particular thing they’ve just written. 

Because I’m tired – so tired – of push-button words. You know: Woke. PC. Gammon. Karen. Cancel culture. TERF. And so many others.

(A point of clarification. This is about the use of the label. Not whether I agree or disagree with the underlying position it (mis)represents. As I hope I’ll make clear in a second.)

I think it started with “Remoaner”. Yes, I voted Remain. And I still think Brexit was a bad idea, done worse. (As with all things in UK politics, there’s a Yes Minister quote to fit the moment: “If you’re going to do this damn’ silly thing, don’t do it in this damn’ silly way.”) But among my friends are those who think otherwise, and we’ve come to understand and respect (and even care for) each other better because we started from assuming we were all acting in good faith. Still, every time I read a piece of writing with the word “Remoaner” in it, I just stopped reading. I thought: you’re pushing your readers’ buttons. You want them immediately to leap over the pros and cons, and move right on to an assumption of idiocy and bad faith on the other side. And that’s just wrong. 

And when I started thinking like that, I realised that so much of modern political discourse, on all parts of the political spectrum, was doing the same thing. In sports analogy terms, playing the person not the ball. Pushing the button, delivering a nice big dose of we’re-right-they’re-wrong dopamine, rather than actually trying to make the case. It’s not dog-whistling, because it’s not even bothering to hide in plain sight. No; it’s waving other views aside. Apply label, turn off brain, stop listening, assume the worst. 

In a way, it’s akin to what I’ve long regarded as the ultimate intellectual dishonesty: the straw-man fallacy. Even those not familiar with the term will recognise it straight away: the (deliberate) misrepresentation of someone else’s view so it’s easier to (ostensibly) refute. A classic example: we’re debating the notion of a just war. I say: I have an ethical problem with violence . You say: “So you’d be happy to watch your family get killed and do nothing about it.” You’ve taken my position to an absurd extreme, so as to make a case against something I’ve never said and don’t think. (It’s only a couple of years ago that I learned of the opposite, steel-manning. Which I love. As a barrister, it’s the key to winning a case: construct the best possible version of the other side’s argument first, and only then find a way of beating it. When I lose a case, it’s often because – on reflection afterwards – I realise I didn’t do that as well as I should have.)

Labelling someone as “woke”, for example (or, a few years ago, an SJW; before that, PC), is similar. You freight their position with a bunch of assumptions that you know “your” side will recognise and abhor. Then you go straight on to argue against that caricature rather than against reality. It’s a fundamentally dishonest way of doing things, whether you mean it that way or not. It short-circuits genuine thought and engagement, in favour of scoring points and pointing fingers. And whether it’s from the right, the left or somewhere in between, it’s abhorrent.

So that’s my rule. When I encounter a push-button word, I stop reading. 

I know it’ll mean I don’t read some things that perhaps I should. But attention is a very limited resource, for us all. And if you’re going to waste mine (and others’) by pushing buttons instead of engaging brains, I can’t be bothered with you. I’m going to turn the page. Close the tab. Move on. And read someone I disagree with who’s got more integrity.

Someone is right on the internet: Geeks like words. It’s part of who we are, on the whole. We have whole languages sometimes (conlangs – love ‘em). But even when we don’t, any fandom has words, phrases, which carry in their etymology histories of how our genres have evolved that we’re probably not aware of in the slightest. 

Which is where the Historical Dictionary of Science Fiction comes in. Find a word or phrase. Jump drive. Nanobot. Sentient. And trace it through writings and media over the past 70 years or more. It’s a lovely rabbit-hole. Enjoy.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii5, Friday: Malleable memory.

JSJ2 Comments

The litigation process causes witness inaccuracy – and the courts are recognising that. Also: a wonderful hymn to the joy of errors. And why stories can help fight corruption.

Short thought: Job one, when you’re a barrister, is to read the papers. 

In olden times – that is, a year ago – these would normally arrive in fat bundles. Possibly, even today, tied up in pink tape. (Ah, the nostalgia.) Nowadays it’s PDFs. Already put together if you’re lucky. Buried in dozens of nested emails if you’re not. (The fact that I’ve written about this three times in the past six months shows how painful this is.)

But however they come, knowing the papers, inside out, is critical.

In commercial litigation this is if anything more important. The reason? Over the past decade or so, judges in the English commercial courts have recognised the fundamental problems with oral witness evidence, long considered the gold standard and backbone of any trial. 

The first really stalwart example of a judge making it clear that documents, not people, were what they would primarily rely on was the case of Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), in which Leggatt J (now Lord Leggatt JSC) made clear at [15]-[22] his awareness that memory is fallible, that the process of civil litigation itself risked making it still more fallible, and that the mechanics of memory formation itself meant relying on witness recollection except as a means of scrutinising the documents in the case was usually a futile exercise.

There’s been push and pull about Leggatt J’s points ever since. But at their heart they stand up. They reflect, among other things, the growing and spreading knowledge of how cognitive biases function (warning: that link is a rabbit hole from which you may not emerge), and the fact that memory is a construct, not a recording. 

The Courts’ recognition of this, at least in commercial litigation, is now official. Enshrined in a new practice direction (PD57AC for those keeping score – starting at p64 of the linked PDF), are rules about witness statements at trial which seek to mitigate the adverse effects of the litigation process and improve the odds of witness evidence actually being useful. The explicit recognition of what one might call the Gestmin principle is at para 1.3 of the appendix, at page 69 in the PDF I linked to:

Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:

(1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

(2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

(3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.

The other reason for the PD (and this was made clear on a enlightening webinar by the Leeds BPC Forum earlier this week addressed by Andrew Baker J) is the burgeoning use of witness evidence to make arguments. Judges are getting more and more annoyed by this – one can do little better than look at the many, many posts on Gordon Exall’s Civil Litigation Brief (this is just the latest) on this subject for excellent examples. 

Either way, though, the message is clear. Know your papers. Make them tell the story you need to tell, and use witnesses carefully to buttress that story. Because if you don’t, the other side definitely will.

Someone is right on the internet: Speaking with the experience that comes from being the parent of a 14-year-old, her generation seem to have a harder time with perfectionism than mine ever did. I don’t know why, but I suspect the welter of examples, spread across countless media, of people who seem effortlessly to succeed – with all the hard work in the background neatly occluded – may have something to do with it. The fact that Gen Z simply, frankly, has it harder than we do, with narrower pathways to success and far greater consequences for screwups along the way, is probably also relevant.

Even so, I remain a true believer in the principle that to be good at anything, you have to be OK with being bad at it for a while as you try to improve. And that it’s OK – no, it’s critical – to be OK with getting it wrong. So long as you only get it wrong the same way once. I remember interviewing someone for a job once who surprised me at the “do you have any questions for me?” stage by asking how I’d deal with her making a mistake, which sparked a great discussion about the importance of assessing people by how they correct and learn from errors, rather than by the errors themselves. A reallybrave question, but in fact an excellent one – one which made sure she got onto the final shortlist. 

So this piece by David Duchovny (yes, that David Duchovny) struck a chord. Starting with a Beckett quote – “Fail again. Fail better” – he weaves a hymn to the importance, and sometimes even the joy, of screwing it up and trying over. Or, as Fred and Ginger put it, “Pick yourself up, dust yourself off, and start all over again.” He also used a word I’ve never seen before, but am now in love with: hamartia, which he describes as the “near miss” that delivers an electric energy driving the next attempt. (Dictionaries give a darker meaning: the tragic flaw in a hero that triggers their downfall. But Duchovny’s sentiment, if not his usage, is bang on.)

Seriously, it’s a great read. (Sorry, paywall again, but The Atlantic’s is metered so you should be able to take a look.) And I can’t sing this song often enough. 

Thing I wrote: In less plague-ridden times, Fiona Horlick QC – a fantastic advocate and a genius at health and safety and disciplinary law – is my roommate at Chambers. 

(Barristers’ chambers are usually, although not always, set out in individual rooms rather than open-plan spaces. Our work doesn’t lend itself to the disruption and lack of privacy of open-plan. But often those rooms are shared with one or two others – which both cuts the cost and makes for a pleasant collegiality. Alex Haines, one of only a handful of lawyers who are genuine experts in the law of international organisations like the IMF or the international development banks, is in our room too.)

For the moment, of course, we’re physically far-flung. But we’re still working together. And Fiona and I put together a piece for the Government’s Public Sector Counter-Fraud Journal (link to the whole thing in PDF; we’re on page 5) on how the stories people tell themselves can encourage corruption – and how we can use those stories to quell it or find it as well. My past life as a reporter means that perhaps I look too much for narrative in my work as a barrister, but finding the right story can be a hugely important tool (a bit like finding the right analogy – see the last chunk of this piece). And understanding how the stories which people tell themselves can influence their actions is important for this, too.

Thing I said: My friend Daniel Barnett, who’s been mentioned in these annals before, was as upset and (frankly) perplexed by the Times’s assault on employment tribunals and their judges as I was. So he corralled – sorry, persuaded – several employment lawyers to take the Times’s inaccurate claims apart on his YouTube channel. I was one of them. Personnel Today followed us up – thankfully with a pic of someone else, not me. Phew.

Incidentally, judges aren’t the only people who can’t answer back. Think of all the tribunal staff who’ve been working their hardest, amid this nightmare of a pandemic, to keep the show on the road and to keep delivering justice. They don’t have a voice either, but their morale is hit just as badly by inaccurate garbage like this. We’re fortunate to have a voice; as (for barristers) self-employed professionals, speaking up for people is our job. So in this we’re speaking up for them, too.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)