Month: Mar 2021

2021iii31, Wednesday: Questions, questions.

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With less than a week to go before new rules on witness statements in commercial litigation come into force, the problem remains: do lawyers know how to ask questions?

Short thought: I’ve written before about the problem of malleable memory, and the fact that from 6 April onwards witness statements for commercial trials will need – explicitly – to take that into account. (That’s thanks to Practice Direction 57AC, for nerds like me.)

It’s how litigators will need to do that which I find interesting. And it gives rise to a concern: do lawyers still know how to ask questions?

Simply in posing the question, it sounds ludicrous. I’m a barrister. Asking people stuff is what we do, isn’t it?

Well… up to a point.

Here’s the problem. PD57AC says commercial trial witness statements have to be in the witness’s own words, as far as possible. They need to be made with reference to documents only where it’s essential. They need to be limited to witnesses’ own experience and recollection.

And – critically, for the purpose of this post – they need to be made through a litigator interviewing the witness:

  • As far as possible without asking leading questions, and definitely not when covering the really critical and contentious areas;
  • Sticking to open questions; and
  • “Recorded as fully and accurately as possible, by contemporaneous note or other durable record, dated and retained by the legal representatives.”

This is the point at which barristers who spend their time on crime and family matters laugh to the point of nearly passing out. They’re the ones for whom examination-in-chief, where you tease out your own witnesses’ stories one open question at a time, is a daily stock in trade.

But for civil practitioners, who’ve only ever asked a handful of open questions in supplementaries or re-examination and otherwise spend their lives cross-examining, this is baffling; a dimly-lit throwback to half-remembered advocacy classes in Bar school. I suspect it may be even tougher for solicitors, for whom this kind of questioning has never been exactly a core job skill.

Because let’s be honest. Drafting witness statements doesn’t happen as described above. Leaving aside the habit (which the Practice Direction makes clear it deplores) of using witness statements as a sort of pre-skeleton, full of argument and comment on documents and citation of authorities, even a straightforward narrative is (more often than most would care to admit) drafted by a solicitor from the documents, and then signed off by the client. And in particular the process of honing the draft to finality bears very little resemblance to what the Statement of Best Practice appended to the Practice Direction starkly requires: that it be

done by non-leading questions for the witness to answer in their own words, and not by proposing content for approval, amendment or rejection by the witness.

Like my crime friends, this doesn’t bother me. I’m fortunate that a decade as a reporter and another decade as an investigator has left me entirely comfortable with open questioning: letting a witness tell their tale in their own time and words, looping back into points of particular interest with more focused (but still open) enquiries and then expanding the view back to wide-angle as the need arises.

I do recognise this isn’t normal for many people – and I suspect some may struggle. Not because they’re anything other than fantastic at their jobs. But because this is hard. It takes focus, and time, and a lot of practice. Anyone who remembers Bar school will recall early struggles to master questioning styles, and the frustration of being unable to sustain a coherent line of enquiry without slipping into yes/no or leading the witness.

So if the Courts take this change seriously – and judges already punish witness statement malefactors with costs sanctions – we’re going to have to change our ways.

Here’s a final irony. There’s actually a group of people who are rather good at this. They’re called police officers. Not all of them, of course. But UK police recognised long ago that interviewing where you actually wanted to find out what happened, rather than seeking to satisfice by getting just enough to stand up the case against the person you just know done it, is a tricky and technical business. Starting with the PEACE method and moving onto cognitive interviewing, the best police interviewers are examples of what the Practice Direction requires. We lawyers could do worse than to ask them for help.

(Footnote: I had the jab yesterday. And as a result I’m feeling somewhat under the weather – headache, shivers, temperature. Nothing major, but I apologise in advance if Friday’s piece ends up just being a linkfest.)

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2021iii29, Monday: Wad some Pow’r…

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Why condemning a little less and understanding a little more leads to better advocacy, and better humanity. Plus: 20 years of a timeless operating system. And woodblock prints to take your breath away.

Short thought: I can date the birth of my fundamental politics to two things. The first was when we moved from Hertfordshire to just outside Stoke-on-Trent in 1987 (I was 16) and I came face to face for the first time with the destruction that government policy had wrought, knowingly, on people’s lives over the past near-decade. The second was in 1993, with a single phrase uttered by the prime minister of the day. It was John Major, now a Bencher of my Inn (the Middle Temple) who – in a country rocked (rightly) by the conviction of two 10-year-olds for the murder of a child far younger than themselves – told a Sunday newspaper that it was time to:

Condemn a little more and understand a little less.

To be fair to Major, who since leaving Number 10 has proved to be one of the saner, calmer and more thoughtful and understated politicians of my experience, he wasn’t saying understanding had to go altogether. Not for him – then or now – the blood-soaked hang-and-flog tendencies so common in the Tory party, and particularly in its current Home Secretary.

But still, it rankled then, and it rankled now. Still more did it reek to me after 9/11, when so often efforts to understand what drove such attacks was labelled almost as treachery. 

The mistake, as so often, was to confuse empathy with sympathy. To empathise, appreciated correctly, is to strive to see the world as another sees it. To understand a worldview. To see what drives someone to behave as they do.

This is not sympathy. Tout comprendre, ce n’est pas tout pardonner. It’s not agreeing with the person in question. One can empathise and still loathe, whole-heartedly, what someone does and why. 

Now, I admit I may not be the poster child for empathy. I’m as short of it as anyone else, on some days. But personally and professionally, I prize it – perhaps as a supreme virtue, from which wisdom flows.

Personally, because – as Sherry Turkle put it in a recent interview – it’s a survival mechanism. It saves you from seeing only the worst in people. It can show you that some behaviour you’ve interpreted as simple malice may have a deeper driver; something you can understand, so that it stops eating away at you and sets you free.

And professionally because, first as a journalist, then as an investigator, and now as an advocate, I’ve always been an asker of questions. It simply isn’t possible to do that successfully without empathising with the subject of the questioning. (Just ask anyone who’s any good at interrogation.) Be it an interview or a cross-examination, step one is to try to see the narrative as the other sees it. And only then craft the questions to take you where you need to go: be it facts, knowledge or the raw material for the argument you need to make. If you can’t empathise, you’ll get nowhere. 

So yes. Just as I mistrust anyone who’s certain, I mistrust anyone who refuses to show empathy. There’s something fundamentally inhuman about such a person. As Pratchett (I think) once said, true evil begins when you start treating people as things. And a lack of empathy is at the heart of that. 

Put more simply: Robert Burns, bless the Immortal Memory, was right. 

All our yesterdays: Other than the BBC Micro my folks bought me when I was a kid, I’ve only ever owned Macs. Between me and my beloved, we’ve probably had a couple of dozen. I’m comfortable on Windows, but I live in Mac OS. I have done since my college days, when my first modern computing was on the old-school all-in-one Mac SE, and continuing on from the first one I ever owned, a PowerBook Duo.

So I remember the travails of the late 1990s, when Mac OS was showing its age and Apple was trying and failing – often flailing! – to find a replacement. (Jason Snell tells that story well; venerable Apple site Tidbits does too. Not for nothing is Copland a bit of a trigger word for those of us around at the time.)

That came in 1999, with the developer previews of the brand-new Mac OS X (pronounced “ten”, although admittedly only by geeks and long-time Mac-heads). It was slow, it was buggy, and it was amazing. The first market release of OS X 10.0 Cheetah (the first of the big cat nicknames that lasted right through to 10.8 in 2012) came 20 years ago last week. 

Lord, the memories. So much has changed – when you look at the candy stripes and brushed metal in the original, the recollection can be rather painful. But as MG Siegler notes, the fundamentals of the interface really haven’t changed that much. “Beautiful,” he calls them. “Timeless.” I’d agree.

For those in need of a retrospective, Ars Technica does well. For the real nerds, the immense, and terrifyingly detailed, reviews by John Siracusa of each release from the first DP in 1999 through to Yosemite in 2014 are worth a look. Memory lane, people. Memory lane.

Someone is right on the internet: I’ve written before about Brain Pickings, the weekly email on a Sunday which rarely fails to produce something thought-provoking, heart-filling and beautiful. Yesterday’s email was all that, and more.

My love of woodblock prints is no secret either, so perhaps it’s inevitable that this email should suit me. But honestly, I don’t think you need to know anything about woodblock prints, or even ever to have seen one, for these to take your breath away. They’re by Kawase Hasui (I can’t write his name forename first; as a Japanese speaker, it feels disrespectful), made a Living National Treasure in 1956 the year before his death.

Words can’t describe. Please – just enjoy.

(I should add that Kawase – whose personal and family names, wonderfully, both have water characters in them, somehow fitting for an artist in a medium whose most famous expression, ukiyo-e, translates as “pictures from the floating world” – isn’t the only beauty in yesterday’s email. There were wonderful musings at the bottom of the message about the importance of treating love not as a noun, something you receive and which you must seek out, but as an active verb, a practice to which you commit yourself. A simple grammatical shift, but with such depth of meaning…)

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2021iii26, Friday: Monster beamy.

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Fat ships and hydrodynamics. And GCHQ makes the most of the fact that one of my heroes is now on a banknote.

I’m sorry. I’d intended to write something on empathy – a hugely undervalued and misunderstood trait, for us advocates as much as for everyone else. But I’m facing the usual barrister clashing-deadline problem today, so I have to content myself with a couple of links.

Someone is right on the internet, 1: One of the benefits of blogs, and now of the less toxic corners of social media, was always said to be that genuine, unfiltered expertise was never more than a click away. (Let’s not do the “experts suck” thing. Please?)

But good old-fashioned mainstream media also has an important role here. Not all experts can communicate. But the best reporters excel in taking expertise and translating it for us lay people, without diluting its true value.

For anyone puzzled, baffled or just plain incredulous about what’s happening in the Suez Canal right now, the FT does a glorious job of dealing with the hydrodynamics behind the grounding – or as the writer, Brendan Greeley, puts it, “walling”, of the Ever Given.

(The main story is here. Sorry, subscribers only; this is a gift link, but it’ll only work for three people, so if you do have an FT subscription please use the first link.)

A taster:

By any historical standards, the Ever Given is a monster. But it’s a monster in a specific way: it’s fat. The more containers you can stack on a single ship, the cheaper the marginal cost of each new container. But the specific engineering of container ships mean that they can’t get longer; they have to get wider. An oil tanker is a shoe box with a lid: hull on the bottom, oil in the middle, deck on top. But a container ship is a shoebox without a lid: hull on the bottom, then containers all the way up. It’s not as strong without the lid.

Why no lid? Because there’s a limit to how long you can make something out of welded steel plates, given the forces at play in the open ocean. So for container ships, you make them wider – “monster beamy”, as Brendan puts it – and pile them higher. And what did this mean for the Ever Given?

Wind definitely played a role, but there was probably something else happening, too. The ships keep getting bigger. But everything on Earth stays the same size.

That’s how he ends, but I’m not really giving anything away by quoting that. The piece is great. If you can, read it.

Someone is right on the internet 2: Of the UK’s three main intelligence agencies, the funny thing is that the least prominent in popular culture is both the most overt, and the most expensive. It’s the Government Communications Headquarters or GCHQ, whose main site is a huge round building in Cheltenham (the shape of which is rather elegantly reflected in its logo and typography).

As the government’s code-makers and code-breakers, as well as the outfit responsible for securing and penetrating networks and systems, their importance has in fact never been higher. So it’s no surprise they’re making the most of one of their own now appearing on the new £50 note, in the shape of Alan Turing.

My first real brush with computers was in the Turing Room at King’s College. Back in those prehistoric days when most students didn’t have their own computers, the Macs arrayed in the Turing Room were – for those of us who by the 1990s had already moved away from hand-writing essays – a home from home. (And also cemented me on the Mac vs PC side of the equation.)

However, I didn’t know much about Turing himself. I didn’t know he’d formulated much of the theoretical basis for computing. I didn’t know he’d been the linchpin of the UK’s efforts to crack Enigma at Bletchley Park (home of the Government Code and Cipher School, GCHQ’s precursor) in WW2. I didn’t know he was gay. I didn’t know he was hounded for it. I didn’t know he was charged and convicted for indecency as a result. I didn’t know he lost his security clearance. I didn’t know he was compelled to take drugs as an alternative to prison. And I didn’t know the misery of this compelled him to kill himself.

I learned later. Marvelled at the man. And grieved for him, in despair that a mind like that should be thrown away by such paltry injustice.

He’s been posthumously pardoned. His home town, Manchester, has a statue to him, with a plaque that reads:

Father of computer science, mathematician, logician, wartime codebreaker, victim of prejudice.

All true.

Turing was a marvel, and an icon – to me and many others. Despite the controversy that sometimes attaches to banknote choices (and the fact that generally I don’t think UK ones have been terribly attractive), I love the fact that Turing will, from his birthday date in June, grace the £50.

And it’s probably fitting that GCHQ is marking the launch with a series of puzzles. While cryptography today is fundamentally a computing problem, for most of human history it’s been about someone pitting their brain against someone else’s, and seeing which (forgive me) cracks first.

Cards on the table. I sorted the first, which is a straightforward bit of general knowledge. But after that, I’m stuffed. (I may love Cracking the Cryptic, but mostly as a spectator. I can only do their puzzles with a lot of handholding.) For smarter and more corkscrew minds than mine, though, I imagine this should be fun. Let me know how you get on.

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2021iii24, Wednesday: Does it add up?

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The slipperiness of statistics, and why us advocates need to learn to love numbers. Plus: wise words from the US on design.

Short thought: I have a problem with numbers: I like them.

Don’t get me wrong. I’m not a mathematician. My formal maths education stopped at A-level, decades ago, and has only restarted recently as I’ve sought to help my daughter with her GCSE maths studies through lockdown.

But numbers don’t scare me, and there’s an ethereal beauty to maths which always appeals. Which, I think, is generally a good attitude in an advocate.

Still, that’s the problem. I sometimes find it hard to understand just how daunting maths – and particularly statistics, perhaps – can be to many people. To be clear: that’s a failure of empathy on my part, not any failing on theirs.

Why “particularly statistics”? Because, I think, they can often defeat common sense. And while Darryll Huff’s seminal book “How to lie with statistics” overdoes it (Huff later became a key smokescreen for Big Tobacco, unfortunately), the fact remains that using stats to obfuscate instead of illuminate is an old and well-used trick because it works.

(Chart crime is a subset of lying with statistics, or perhaps an overlapping circle on a Venn diagram. Because often chart crime arises from negligence, not malice. FT Alphaville’s Axes of Evil series, from which the above illustration is drawn, is an excellent set of examples.)

A great illustration of the “common sense is wrong” problem is highlighted in a piece by a Conservative MP, Anthony Browne. (I don’t usually link to pieces by Tory MPs on ConservativeHome. But this, despite the clickbait headline about government policy, is really good.) Anthony says his constituents are up in arms because their kids are getting sent home from school on positive LFD Covid tests, and kept away even when they have a negative PCR test thereafter. Surely the PCR tests are gold standard? This can’t be right.

Well, yes it can, says Anthony. And he’s spot on. The issue arises because of the counter-intuitive way that false positives (getting a yes when it should be a no) and false negatives (the other way round) interact with large populations with a relatively low incidence of what you’re testing for.

Put simply:

  • Imagine a million kids, and 0.5% of them – 1 in 200, or 5,000 – have the Bug.
  • A positive LFD test is almost always right (only 0.03% false positives – only a tiny fraction of people told they have the Bug will prove not to have it), but a negative test is much more unreliable (49.9% false negatives – in other words, if you’ve got the Bug there’s a 50/50 chance the test will say you haven’t).
  • A positive PCR test is basically always right. But 5.2% of people with the Bug will get a negative result nonetheless.
  • Of the million kids (remember: about 995,000 are fine, about 5,000 have the Bug), the LFD will flag 2,500 of the kids with the Bug. (Yes, the other 2,500 won’t get flagged. But that’s a different problem…) It’ll also flag about 300 kids who are clean. Oops.
  • So 2,800 kids get sent home, along with their close contacts. Assume all 2,800 then have a PCR test.
  • The zero-false-positive thing means all 300 of the mistakes will get picked up. Yay! Back to school for them and their classmates?
  • Er… no. Here’s the problem. That 1-in-20 false negative rate means that about 125 or so of the 2,500 kids who DO have the bug will get a negative result as well.
  • So of the 425-odd kids whose PCR looks like they should be allowed back into school, a third of them are actually Bugged.

This, says Anthony, is why the government is right to disallow immediate return after a negative PCR. And I see his point. The stats are right, if utterly counter-intuitive. 

What’s this got to do with advocacy? Well, so much of our work involves numbers. In crime, it’s DNA tests. In personal injury, it’s causation for some kinds of illness and injury. In commercial matters, we spend our lives poring over company accounts and arguing over experts who tell us what’s likely and what’s not. And an awareness of Bayesian reasoning can be a huge help when assessing whose story stacks up.

And if we don’t speak numbers, how can we possibly ensure our clients’ cases are properly put?

This point isn’t new, and the profession knows it. Working with the Royal Statistical Society, a couple of years ago it put together a guide for advocates on statistics and probability. It’s brilliant. Download it, and keep it as a ready reference. And – as I’m trying to do – find ways of illustrating probability that are transparent to people for whom this just isn’t straightforward, or that take into account the times when statistics boggle the common-sense mind.

One final word on Anthony’s piece, though. He rightly points out that these numbers change as the incidence drops. The false-negative rate in the above example, for instance, falls to less than 10% once the incidence of the Bug is down to 1 in 1,000. 

But his overall point – that government policy is backed up by the numbers – has one big hole, it seems to me. As we noted, the false negative rate for LFDs is 50%. So even on our example, that’s 2,500 kids WITH the Bug who are in school, in the honest but mistaken belief that they’re no risk to anyone.

In other words, the reliance on LFDs for school testing is a false comfort – a form of pandemic theatre (akin to the security theatre that made air travel such a pain before it was wiped out by the Bug). And compared to that, quibbling over the 125 kids to whom the PCR has wrongly given the all-clear seems a bit pointless. 

(An invitation: I like numbers, but I’m not a statistician. If I’ve got any of the above wrong – particularly the final bit about the 2.5k kids innocently swanning around leaking Bug everywhere – let me know and I’ll correct myself.)

Someone is right on the internet: As a follow-up on the font conversation on Monday, I’ve always been a fan of style guides. Not the ghastly prescriptive grammatical guides (Strunk and White, I’m looking at you); I mean the guides some publications craft to help their writers keep things consistent. Good examples come from the Guardian and the Economist.

These, of course, deal with words themselves, not the typography in which they appear. But a good friend (thanks, Ian) points to a guide published by the Securities and Exchange Commission in the US. It’s aimed at people creating investor notifications, for instance about listings, and spends a lot of time suggesting clear language (and is really good on that). But there’s also a chapter (chapter 7) dealing with design, which says wise and interesting things about fonts. Worth a look.

It also makes some worthwhile and entirely true points about layout: for instance, that a ragged right-hand margin is far more readable than a justified one. I’d love to adopt that one in my legal drafting. However, I suspect that if I hand in a Particulars of Claim, or a skeleton argument, with a ragged margin, I’m likely to get into even more trouble than I will by continuing to use Garamond. Baby steps…

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2021iii22, Monday: font (mis)judgments.

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Like many ex-hacks, I take fonts seriously. Clearly US judges don’t – or rather, they do for the wrong reasons. More fool them.

Short thought: It may be just my background as a reporter, but fonts and layout matter to me. A well-chosen typeface, apt for the task at hand, and a design which leads the eye to where it needs to go and includes enough space for the text to breathe, aren’t afterthoughts. They’re integral to the process of respecting the reader’s attention, and maximising the chance that the words will get past the pupil and into the brain.

None of that changes when you’re an advocate instead of a journalist. The more so, perhaps: obviously a nice design isn’t going to save a hopeless case or slipshod drafting, but all things being equal a pleading or skeleton which makes the tribunal’s life easier can’t hurt, and is highly likely to help.

I’m staggered, therefore, when I discover friends and colleagues who don’t have templates that do the hard work for them, routing around Microsoft Word’s disastrously unpredictable list settings and ensuring that headings, subheadings, and cascading numbering all work consistently and well.

I started developing one about three months into pupillage, with styles for every type of paragraph and heading I needed. I update it every few months. It stands me in good stead. It does the critical job of making sure I only need to worry about the words.

The one thing I never settle on, though, is a font. Not for me Times New Roman; I know it’s traditional, but sweet Jesus it’s boring, ugly and not particularly pleasant to read. Calibri or Cambria? No. Helvetica? A little too grotesque. Arial? Don’t even. Seriously.

I waver between Liberation Serif (for when a serif font is absolutely necessary) and Gill Sans (my BBC background leaves me with a huge soft spot for this). Both are readable, clear, understated and – critically – reasonably compact.

(This is why, sadly, I have to avoid Optima. It’s always been a clear favourite of mine, hinting at serifs and exploiting their readability without actually quite displaying them. But it’s just too big, so even a relatively short skeleton starts looking like something of a novella to a time-pressed judge.)

Sometimes, though, I return to an early love: Garamond. Not only is it a thing of beauty, harking back to the early Apple days (when it was the standard house font for printed materials). It’s also startlingly compact. When you’re short of space and there’s a page limit, Garamond can squeeze in about 15% more words.

Unfortunately, everyone knows this. Including, apparently now, the DC Circuit Court of Appeals in the USA, which has now explicitly said it wants Century or TNR, and specifically doesn’t want Garamond.

Tasteless beggars. Shame on ‘em. Not least for the utter monstrosity of a font they used to issue the edict.

(This is not unduly to critique my friends who don’t see it that way – I’m looking at you, Daniel. But there’s been a nice little twitter-spat brewing – nicely good-natured despite the critically important nature of the subject matter – among UK barristers on this. It seems to have died down, so obviously one shouldn’t pitch in and re-ignite it. Obviously.)

Someone is right, and wonderfully generous, on the internet: Anyone involved in civil litigation needs to understand Denton.

For those fortunate enough to be uninitiated: more often than any sane person would like, things go wrong. Deadlines are missed. Orders or rules are broken. And sanctions are applied by the Court.

When they are, rule 3.9 of the Civil Procedure Rules allows a party to apply for relief from those sanctions – to have permission to file a late pleading, say, or to use an expert witness. But the rule is very brief. How the Courts will apply it in practice is the subject of an ever-expanding body of authority, arising primarily from the case of Denton v TH White [2014] EWCA Civ 906 which set a three-stage test: Was the breach serious or significant? Was there a good reason for it? What, in the light of all the circumstances, is the just thing to do?

Clearly, applying this is – as we lawyers say – an intensely fact-specific exercise. Every situation is different. But that body of authority can help you work out where your client stands – and maximise the odds of getting the result you want.

How, though, to keep track of it? In an act of wonderful generosity, Dr Rachel Segal of St John’s Chambers in Bristol not only does so, but regularly shares the results in a PDF, currently more than 200 pages long. If you’re seeking relief from sanctions, or opposing it, you can’t do better than to start with Rachel’s document, current as of last month.

I was reminded of Rachel’s magnum opus by an equally superb resource, which I must have mentioned before: Gordon Exall‘s Civil Litigation Brief website. How the man finds the time to do any actual billed work is beyond me, but this site is an absolute godsend, particularly for examples of how the courts deal with knotty procedural issues.

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2021iii19, Friday: arbitrage while the music plays.

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How long can Uber’s “labour law arbitrage business” last?

Short thought: There are times when someone comes up with a phrase that perfectly sums a concept up. And you therefore have to lift it – giving due credit, of course.

This week’s example came from FT Alphaville, which caustically, and I think accurately, described Uber as “everyone’s favourite labour law arbitrage business”.

This is beautiful. The whole Uber business model – even more, perhaps, than other gig economy businesses – rests on treating its drivers as self-employed in law, but as under contracts of service (ie workers) in practice. (This was, after all, the essence of the Supreme Court’s judgment earlier this year.)

The reason is simple. As many, many people have documented over the years, the sums just don’t add up otherwise. To succeed, Uber needs to undercut old-fashioned cab services (since its technological advantage is no longer quite so extreme as once it was). So it needs to externalise the significant costs of running a real-world service – which isn’t something that benefits from the zero-marginal-cost scaling advantage of a purely online ones-and-zeroes business – onto its drivers, while retaining sufficient control over them to make sure it can both supply the services with relative certainty and avoid the risk of drivers genuinely running their own “competing” businesses.

Even with this externalisation, and the relentless driving-down of payments to drivers, Uber still loses money hand over fist. Smart people have long opined that the only way the company could ever make a profit is to either have genuinely driverless cars – not going to happen, not in the near enough future – or to drive every other cab firm out of business and hike fares.

At some point, the music will stop. And setbacks to the core arbitrage play like the Supreme Court judgment may well bring that closer. Uber is resisting the judgment, or at least parts of it, while proudly declaring how wonderful it is for complying with the bits it thinks it can just about live with. We’ll see how long that works.

(I note, too, that it spends a lot of time talking about the need for a kind of “middle way” for workers between employee and self-employed status. Which – the sceptic might observe – isn’t a bad definition of “limb b” worker status, which is what the Supreme Court said Uber drivers were. Whereas what Uber seems to be pushing for – unsurprisingly – is something much closer to “self-employed, but with a bit of help”. Which really doesn’t seem to address the point.)

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2021iii17, Wednesday: A bad bill.

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The government’s shameful misuse of the Sarah Everard affair to shore up support for an illiberal bill. And why video shouldn’t supplant the chance to walk and talk.

Short thought: Briefly, because others know more and write better about it: the UK government’s new Police, Crime, Sentencing and Courts Bill is well-described by Joshua Rozenberg and David Allen Green. Both indicate the illiberal nature of the bill’s provisions for controlling protest – and mention the power given to the Home Secretary elsewhere in the Bill to define (as she wills) what “serious disruption”, a trigger for police control of assemblies and for offences if people don’t obey the police in such circumstances, is to mean. I mention this only as an example of what many would see (myself included) as the increasing misuse of secondary legislation to define – in this case – offences incurring significant jail terms without proper parliamentary oversight.

As a sideline, I noted the attempt by the Home Secretary in the House of Commons earlier this week to describe Labour opposition to the bill as being “anti-women”, in the context of the Sarah Everard case and its implications. I don’t normally go this far, but I find this both deeply dishonest and wholly scandalous. The bill increases jail terms for some sexual offences by reducing or abolishing early release, certainly. But it does absolutely nothing – and, to be clear, I’ve heard no indication that this is on the government’s agenda – to fund more investigation, prosecution or the courts such that more cases actually reach a conclusion in a timely fashion. Or, indeed, to examine whether – this recent court case notwithstanding – anything is wrong on a systemic basis with how the police or CPS deal with violence against women.

For shame.

Someone is right on the internet: Till 2015, I’d worked in open-plan spaces for a decade and a half. I hated them. They’re exhausting, loud, inimical to creativity, bug-ridden and only save money if you ignore the immense productivity hit they cause.

So my first day at Bank of Montreal that year was wonderful. I was led to an actual office. With a door that closed. And told it was mine.

Actually, the quiet and seclusion was only part of the reason for rejoicing. Just as important, for me, was that I could finally walk and talk without bothering anyone.

I know I’m not alone in this. When I’m on the phone, I wander. Even if the space is tiny – my office at home is less than 2m wide, so walking is essentially three steps, turn, three steps back – I find it an immense aid to thought. And when the weather’s nice and there’s no-one around, I’m very happy to have an in-depth, technical conversation in the park, or the country, or the seaside. Anywhere where I can put one foot in front of the other.

So while I love videoconferencing, I also hate it. Because it’s become, for some, the norm. Why talk on the phone when you can Zoom, or Teams?

As this piece notes, because video imposes additional cognitive load. It’s unnatural: the brain expects wideband when it sees someone (body language, a sense of space, etc) and instead has to focus solely on a face. And equally, forcing all one’s expression solely through the face, with that awkward sense of how one looks in the tiny thumbnail in the corner of the screen, is also a stressor.

So, please. By all means, let’s turn the cameras on when they’re needed.

But when they’re not, let’s take advantage of the options that a more remote work style allows.

And let me wander.

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2021iii15, Monday: Enlightened laziness

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A message of hope for procrastinators everywhere. And a depressing but unsurprising long read about Facebook’s damaging take on AI ethics.

Photo of the Cam below King’s College, by Giacomo Ferroni on Unsplash

Short thought: Most of us, on occasion at least, struggle with procrastination. I know I do. Sometimes it’s simply having too many plates spinning. Sometimes it’s what I’ve come to call the “paint colour” problem: that when you’ve got a wicked problem and a more straightforward one, the temptation is to solve the latter and procrastinate the former. (“Paint colour” because if an hour-long meeting has two items on the agenda, one of which is existential and the other of which is what colour to paint the office, you can bet that 55 minutes will be spent on the paint.) And sometimes it’s simply that you’re tired, and focus and flow are elusive.

I don’t know of any magic bullets for this. But mindset can help. Whether it’s a form of self-induced CBT or not I don’t know; but I’ve found that a re-framing of my motives has been of assistance. I call it “enlightened laziness”.

This dates back to my college days. I was studying Japanese, which meant a first year spent sweating grammar and vocab for hours a day while friends were drinking around their weekly essay crises. But as it came to exams, I realised that I was spending less time revising than they were. Not because I’d consciously been doing more work; just because the pattern of my work meant I was constantly and consistently reinforcing things.

The upshot? While they sweated their way through a beautiful May in stuffy rooms and libraries, I lay on the banks of the Cam with a bottle of something.

That’s the laziness bit. I like to work. I like to learn. But I also like to live. And so I told myself: if I can translate this into a practice, I can keep lazing on the riverbank when the time is right to do so.

And thus was born enlightened laziness. If I manage my time, and get to things early enough, I get to laze around when I want to. That’s the motivation: not good behaviour, or efficiency. But making space for laziness.

It’s worked for me. Usually. I admit that life at the Bar has given it a knock; especially right now, with multiple clashing client deadlines. But as a general principle, one that says “spread the work out, don’t leave it till the last minute, so that you can laze about instead”, it remains a touchstone.

Now, of course, I’m trying to convince my 14-year-old daughter of the same principle. Don’t leave schoolwork till the last minute: less stress, and more lazing, to get to it earlier. I’m not conspicuously succeeding. Perhaps I never will.

But it might be worth a try, for those like me who’ve struggled with procrastination. I’ve heard worse incentives than to protect your lazing time. Give it a go.

Someone is right on the internet: There’s an excellent long read from the MIT Technology Review on work within Facebook on AI ethics. It’s well-reported, fascinating, and entirely depressing.

I loathe Facebook; I have an account solely for doing stuff I can’t do without it (like managing our relationship with my daughter’s Tae Kwon Do club), and always open it in a private tab to mitigate the risk of it infecting everything else I do. I regard it as parasitic, unpleasant, and sociopathic to a degree. And I fear deeply the fact that a single, exceptionally odd (and although from me that’s usually a compliment, this time it isn’t) and unfeasibly rich young white man can essentially dictate the terms of communication for large chunks of the world.

This piece does nothing to change those feelings. If anything, it accentuates them:

By the time thousands of rioters stormed the US Capitol in January, organized in part on Facebook and fueled by the lies about a stolen election that had fanned out across the platform, it was clear from my conversations that the Responsible AI team had failed to make headway against misinformation and hate speech because it had never made those problems its main focus. More important, I realized, if it tried to, it would be set up for failure.

The reason is simple. Everything the company does and chooses not to do flows from a single motivation: Zuckerberg’s relentless desire for growth. Quiñonero’s AI expertise supercharged that growth. His team got pigeonholed into targeting AI bias, as I learned in my reporting, because preventing such bias helps the company avoid proposed regulation that might, if passed, hamper that growth. Facebook leadership has also repeatedly weakened or halted many initiatives meant to clean up misinformation on the platform because doing so would undermine that growth.

In other words, the Responsible AI team’s work—whatever its merits on the specific problem of tackling AI bias—is essentially irrelevant to fixing the bigger problems of misinformation, extremism, and political polarization. And it’s all of us who pay the price.

“When you’re in the business of maximizing engagement, you’re not interested in truth. You’re not interested in harm, divisiveness, conspiracy. In fact, those are your friends,” says Hany Farid, a professor at the University of California, Berkeley who collaborates with Facebook to understand image- and video-based misinformation on the platform.

There’s something important in this notion of how a focus not on risk but on compliance – obeying law or regulation, and in the process minimising its effects on one’s business model – can be sheer poison for how a business manages its effect on the world, and the externalities it creates. I’ll try to get to it soon – apologies that it’s still brewing.

Till then, this is well worth your time.

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2021iii12, Friday: We just don’t get it. And most of us simply can’t.

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“My life has been one long risk assessment.” For most of us men, ours hasn’t, and we need to recognise what that means.

Short thought: I remember a time – I was about 12 – when a couple of older boys strolled past me in the street, saying something rude (I was a nerdy, skinny kid). I kept walking, kept my head down. Then I heard them turn and start following me. I sped up a bit. So did they. I heard them catching up.

So I started running. So did they. I wasn’t a good runner, but I poured every gramme of energy into my legs. They were right behind me. I was terrified. I realised a friend’s house was only a few dozen steps away. I made it to the open gate, ran through to ring the bell, and heard them slow and walk past just as the door opened.

To this day, I’ve no idea what prompted the incident. I’ve rarely been more scared.

And even in the light of that, I will never, ever truly be able to understand what many if not most women go through, day after day after day. The intrusion. The unwelcome attention. The fear, the foreboding, the painful and exhausting need for constant awareness of all that’s around you.

Most of us men don’t get it. And most of us, however hard we try, simply can’t. As one woman on Twitter put it recently:

This was in answer to a thread that I imagine many if not most women will relate to, describing repeated and utterly inexplicable (at least for any reasonable reason) levels of unwanted attention and intrusion from men of every age and position. For no other reason than that they were men and the object of their attention was a woman; and that, to them, gave them licence.

Some of the male responses, of course, were predictably disastrous: be more careful; teach your daughters how to stay unobtrusive. Others sought to be helpful, talking about learning to “own your space”. Missing the point, gents: some of us, too many of us, create a threat environment that makes it simply unsafe for women to ignore male presence in many spaces.

My recognition of this reality for women means I absolutely support the existence of women-only spaces. It’s not discriminatory for women to want places where people like me don’t belong. It’s simply safety. The chance to let the guard down. To relax. To not be exhausted. At least for a while.

And – while I know I’m entering a minefield here – it also means that while I’m just as much for trans people’s rights as I am for anyone else’s, I don’t see as inherently discriminatory the idea that women born as women might need, still, to carve out corners of the world which are theirs alone. If you’ve grown up as a child, a teenager, a woman with this as your lived experience, what right do I have, knowing nothing of how that constant risk assessment will grind at your soul, to deny you a place where the shoulders can drop, the breath be released and the walls come down?

This isn’t an “all men are awful” thing, either. It’s not a shout against all possessors of a Y chromosome. Hell, I’m one. I’m sure I’ve inadvertently made women uncomfortable at times in the past, and I’m sorry for that. But that doesn’t make me evil.

All it does do is put an obligation on me to recognise this reality. To account for it. To watch my conduct and consider how, without meaning to, I might be ringing someone’s alarm bells. And to stand up in support if I see other men behaving like this.

This isn’t “compromising my freedom”. It’s not me being woke. It isn’t PC gone mad.

It’s about me caring about other human beings. Owning my actions.

Frankly? It’s about being a man.

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2021iii10, Wednesday: Will the press ever change?

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Another instalment in that popular game, “Questions to which the answer is no.”

Yeah. Right.

Short thought 1: Hearing this afternoon, so a genuinely short thought this morning prompted by the above announcement.

There’s an old rule in journalism: any time you see a headline ending in a question mark, assume the answer is “no”. On the whole, it’s a cheap sub-editor’s tactic, to get controversy into a headline and attract readers to a story with a good deal less to say. A bit like the inclusion of “quotes” in a headline: it usually means the quote is unsubstantiated, but makes for an attractive top line. If the paper thought it was true, after all, they wouldn’t need the quote marks.

Which brings me, in a roundabout way, to the media and the royals. 

I have very little interest in the royal family. I recognise I live in a constitutional monarchy. As a lawyer, I am fascinated and concerned by the effect that has on how the law works, and doesn’t (the prerogative, for instance, bothers the heck out of me – particularly with our current government’s attitude to it). 

But the people? I’m no more exercised by them than I am by the thousands of celebrities whose names pretty much always escape me. I have impressions of them, but I realise they’re informed by very little actual information, as opposed to a mixture of propaganda and hit pieces.

Which brings me to the point. I’m painfully aware, as an ex-reporter, of just how poisonous the British press can be. How full of itself. And how utterly devoid of any ability to reflect, own its errors, and acknowledge any need for change.

You might say: a bit like the Bar, in some ways. True. But I think we’re finally facing up to our faults; not fast enough, but with a widespread realisation that our trade has been too white, too male, and too posh for far too long.

The press, on the other hand? It’s hard to read the “defence” of the media against charges of racism by the Society of Editors with anything other than incredulity. The difference in treatment of Kate Middleton and Meghan Markle tells its own story, for anyone with eyes to see. And there’s plenty more where that came from. SoE director Ian Murray’s comment that the Sussexes provide “no supporting evidence” doesn’t come close to passing the giggle test. Any half-way decent editor would red-pencil a line like that from copy they were handed in a hot second.

All institutions in the UK are tainted by bias and discrimination, built into their DNA. All institutions have a choice: face it, deal with it, do better. Or stick your fingers in your ears and shout loudly in the hope the problem goes away. 

I’m happy that apparently the SoE is riven in response to this self-satisfied, indefensible special pleading. And glad to see the letter by more than 200 journalists highlighting the SoE’s statement as a sign of “an industry in denial”. Although I’ve no great hope that anything will change.

(Incidentally, I saw in John Naughton’s newsletter last week that Bob Satchwell, an earlier director of the SoE, has just died. I didn’t know Bob well, but I knew him enough to think that he’d never have sanctioned anything as tone-deaf or simply ignorant as this. He was good people. He’ll be missed.)

Short thought 2: Some smart person (I wish I could remember who) said that the single most important job a leader has is hiring. Who they choose, to do what, tells you more about their priorities and values than anything else.

Which is why the hiring of Tim Wu and Lina Khan by the Biden administration in the US is fascinating. Tim Wu has done as much as anyone to put the principle of net neutrality and the dangers of what he termed information empires in the public eye. Lina Khan, meanwhile, wrote a seminal paper while at law school called “Amazon’s Antitrust Paradox”, and is widely seen as one of the most thoughtful critics of the narrow, “antitrust is all about prices to consumers and nothing else” idea which has crippled competition law in the US for decades and arguably allowed the tech giants to dominate as they have. 

Their hiring is a very strong indicator that the anything-goes days for tech are over in the US. Watch this space.

(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/.)