Tag: advocacy

2021ix9, Thursday: the truth behind the lie.

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Anyone can lie with statistics. But buried in the numbers backing up the BS, the truth that rebuts it can often be found. And fashioning that into a compelling story can be shockingly effective.

One of the great things about numbers is not that they can be used to lie, although they can.

It’s that even when they’re (mis-)used that way, sometimes the truth still lurks within.

I’m no great mathematician, although my daughter tells me that I light up when I’m working through problems with her to help her study. And it’s a sadness that when I studied maths in school, we focused on mechanics at the expense of statistics and probability.

I’ve picked up a bit of each since, although I’m still very rule-of-thumb. And every so often something comes up that simply delights me.

Benford’s Law was one such. I encountered it as a counter-fraud tool many years ago. For large number sets, it observes, the leading digit – that is, the lefthand-most one, denoting (say) the thousands in a four-digit number or the millions in a seven-digit one – is rarely an even distribution. No: a leading “1” is by far the commonest number, with a sharp drop to “2” and then a logarithmic curve flattening thereafter all the way to “9”.

Why is this useful in counter-fraud? Well, to make a fraud work, you often need to cook the books – to alter financial records. What are financial records but numbers? And when you make up numbers, or generate them randomly, you may well fail to make the statistical distribution of those numbers look right.

So if you’re looking at a data-set whose leading digits are evenly distributed – instead of, as Benford’s Law predicts, having as much as 30% of them start with a “1” – you ought to start getting suspicious.

I mention this having been pointed (by the ever-wonderful Charles Arthur) to a recent takedown of a seminal piece of counter-fraud research. The research, from 2012, posited that a measurable decrease in dishonesty could result from a simple change in how people sign declarations of honesty in documents. You know how at the bottom of a tax return, or form providing details for (say) insurance, you sign to say you’ve given accurate information? The research suggested that simply by putting the declaration at the top – that is, before you provide the information instead of afterwards – people would be significantly more likely to tell the truth.

Classic “nudge” theory at work, you might think. 

Unfortunately, the authors themselves tried and failed to replicate their findings in 2020. They found anomalies in one of their key data sets, which they attributed to a “randomisation failure”. 

No: as the new (and really smart and thoughtful) analysis says – conclusively, to my mind – the data in question was simply faked.

I won’t provide too much detail. The analysis is short, clear, and absolutely worth reading in full. To give just one example, it noted that the data (from a motor insurer) included two sets of mileage figures, both supposedly provided by drivers. But while the first set showed notable spikes in frequency for numbers ending either in “000” or “500” (that is: people roughly rounding their mileage to the nearest half-thousand, as you might well expect them to do), the second set was absolutely flat – as the graph reproduced below shows. 

In other words: the same people were rough-guessing their mileage first time round, but giving it accurate to a single mile thereafter. Consistently. Everyone. Every time.

You’ve met humans. You tell me how plausible that sounds.

If anything, the analysis gets still more fascinating thereafter.

To their credit, all four of the 2012 authors recognise the problem, and have now retracted the 2012 paper. There’s no reason to think any of them were party to what now appears to have been an essentially made-up data set. 

More importantly, they also agree with a core emergent finding of the writers of the new analysis. Research which doesn’t expose its underlying data (unless it’s absolutely impossible, say for personal privacy or safety purposes, to share it), isn’t to be trusted. Because it can’t be checked.

And given the reproducibility crisis, that just isn’t good enough.

I recognise that I seem to be straying a long way from the law, here – my usual stamping grounds.

But this is, to me, objectively interesting. There’s a beauty in the idea that those who lie with statistics may ultimately be found out by them too.

And I think there’s at least a small legal application – or at least a litigation one.

Numbers can be made to lie, sure. But equally, underneath the lying explanation there may be a true story begging to come out.

And – as we’ve discussed ad nauseam – advocacy is about story-telling. Don’t ignore the opportunity you have to use numbers to tell stories. If you can take a wall of impenetrable numbers, and – as the writers here have so lucidly done – use them to fashion a compelling, even shocking, narrative, which grabs the attention and answers the key questions, don’t waste it. 

Not all of us advocates are numerate. Not all of us “get” statistics and probability. Some of us even misuse them – by accident or by design. But more of us should get it, and get it right. I know I’ve mentioned it before, but the Inns of Court College of Advocates guide, created with the help of the Royal Statistical Society, is a pretty good way to start.

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2021v5, Wednesday: Stories.

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On learning advocacy from story-telling, across genres and styles. With a plug for Carly Simon, John le Carré, and a recent opponent of mine.

Short thought: I can bore for Britain on the subject of story-telling. Indeed, I already have, several times.

But this is because it’s important. For us all as human beings, for whom stories help us understand who we are and – as critically – who others are. (And sometimes, more malignantly, paint others in ways which traduce them.)

And particularly for us advocates. As I’ve said before, a big part of advocacy is in crafting the narrative that makes the facts sing, which simply makes more sense than the other side. It’s not the only thing. But it’s a big thing.

Most of us advocates, unsurprisingly, therefore love language. And we owe it to ourselves to learn from its usage, not only in our own world, but in others.

Songs, for instance. Sure, a good lyric is a million miles away from what you can put before the High Court. But the greatest song-writing is often a peerless exercise in narrative concision. A few verses to relate a whole tale.

A fabulous, fabulous example of this is an old favourite of mine: You’re So Vain, by Carly Simon. Putting aside the frankly tedious argument about whether it was Warren Beatty or someone else who inspired it, it’s essentially a story told – stripping out repetitions of the chorus – in fewer than 200 words.

And what words! I could choose any line, but this one stands out for packing the maximum meaning into only five words:

“And your horse naturally won.”

That adverb does so much work. In context, it’s practically a story all of its own.

Seriously. Listen to it. See how the story builds. See how every word works. And learn.

Fiction, of course, is the same. This is one reason I love audiobooks. When read by a good narrator, in circumstances where you can pay just enough attention, the words of great writers sing out to you and leave you breathless.

Again, an old favourite. While running recently, I’ve been re-listening to an unabridged reading of Tinker Tailor Soldier Spy, John le Carré’s peerless classic of loss, regret and espionage – although frankly the espionage, as with much of le Carré’s work, was the canvas rather than the paint. The first few chapters kept hitting me with phrase after phrase, each more perfectly formed than the last, each with every word working.

Will I use it directly? Of course not. But will I reflect on the usage, the choices underlying it, and seek to learn? Without a doubt.

The lesson here for me: narrative is everywhere. Much of it is dross. Some of it is breathtaking. The latter is a masterclass for those, like me, who tell stories for a living. And we ignore it at our, and our clients’, peril.

(As a sidenote here: I heard a wonderful piece of narrative advocacy yesterday, from my opponent in an employment tribunal hearing. I’ll say nothing about the content of the hearing, on which judgment has been reserved. But that doesn’t have to stop me from saying that Rad Kohanzad, of 42 Bedford Row, told his client’s story beautifully, simply and effectively, weaving his submissions naturally into the tale as he spun it. Not too effectively, I hope; obviously, I want to win! And, albeit in a different metre, I think my story-telling was pretty sound too. But credit where it’s due.)

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2021iv2, Friday: Mixed measures and madness.

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16 ounces. 8 pints. 32 degrees. Really? And thought-provoking writing on persuading the unpersuadable.

Short thought: I think in mixed units.

For long distances (and speeds) it’s miles (and mph). Being a Brit, all our roadsigns are in miles, so that’s simply how I know it at gut level. I can convert easily, but it’s always a conversion.

For short distances, it varies. Inches for anything between my thumb and my shorter than my arm. Metres for longer; centimetres or millimetres for shorter.

For almost everything else, though, it’s metric. I know I’m several kilos overweight. I can recognise a pint, but it feels like about half a litre.

Which means I can understand those people older than me for whom metric still feels alien. But I also recognise that for almost everyone under the age of, say, 25, who’ve lived and breathed metric their entire life, imperial is simply incomprehensible. 16 ounces to a pound. 14 pounds to a stone. 8 stone to a hundredweight. 20 fluid ounces to a pint. 8 pints to a gallon. 12 inches to a foot. 3 feet to a yard. 1,760 yards to a mile.

Let’s not even talk about the fact that the only other jurisdiction in the world which is a metric refusenik is the USA. Whose measures of volume are completely different to ours. Blessed inconsistency, indeed.

Compare that to the straightforward scaling by three orders of magnitude, from mm to m to km, from g to kg to tonne, from ml to l, and I can’t for the life of me understand why anyone would want – for any reason other than a blunt, brain-free determination to turn the clock back – to compel the use of imperial measures. 

Unless, of course, it’s all just yet another dishonest weapon in the so-called “war on woke”, which so often translates into the determination of those with power to keep it. 

I’ll leave it to the reader to examine the front page of Wednesday’s Daily Mail in the above context, since it managed to combine the use of fahrenheit (which, to her credit, my daughter described as “simply insane” when we tried without success to find a canonical reason why water froze at 32 degrees and boiled at 212) with a story on the latest race relations report which seems to have been designed by the government to provide fuel to “own the libs” rather than actually reduce discrimination or improve equality or equity. I’m sure there’s no connection. Not even in a Mail editor’s mind.

Someone is right on the internet: Adam Grant is fantastic. His book Give and Take wholly changed my view on how productive professional relationships function; a change which, I believe, has worked wonders for both my success and my happiness at work.

This piece is characteristically thought-provoking. Instead of looking at why a business leader makes decisions, he looks at how a leader’s mind can be changed. Specifically Steve Jobs, generally seen as not only one of the most successful, but also the most stubborn, arrogant and rude, businesspeople in recent decades. (I say that as a lifelong user and appreciator of Apple products. I can love what’s done by the house that Jobs built, and mourn his early death, and still criticise the man himself.)

Why pick this? Well, as an advocate, I spend my life trying to make a case for something. Mostly, judges are nothing like Jobs – not in their intelligence, which is sometimes breathtaking, but in that they’re neither arrogant nor stubborn. (Rude? I’ve been lucky. I know many that haven’t.) But if you can think through how to persuade someone who’s not inclined to listen, it’ll help you hone your points to razor-sharpness, and make your case take that critical leap into seeming the only sensible reading of the facts. 

Well worth a read. As, indeed, is what Grant writes in general. (Yes, there’s a newsletter. But it’s only monthly.)

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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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2021iii5, Friday: look closer.

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Why taking the time to let the details sink in is critical to good advocacy. And a confession about football.

Short thought: My love of ukiyo-e (woodblock printing) is no secret. But I never thought it would help me think about my advocacy.

The trigger here is a piece from Craig Mod, about whom I’ve written in the past, entitled “Looking Closely is Everything”. Craig starts by discussing a famous Hiroshige print, comparing his own capsule description of it to a previous writer’s much more detailed one. He describes the thought-paths that spin off the in-depth word picture, and uses them to draw a lesson:

The point being: Looking closely is valuable at every scale. From looking closely at a sentence, a photograph, a building, a government. It scales and it cascades — one cognizant detail begets another and then another. Suddenly you’ve traveled very far from that first little: Huh.

I’d say that that huh is the foundational block of curiosity. To get good at the huh is to get good at both paying attention and nurturing compassion; if you don’t notice, you can’t give a shit. But the huh is only half the equation. You gotta go huh, alright — the “alright,” the follow-up, the openness to what comes next is where the cascade lives. It’s the sometimes-sardonic, sometimes-optimistic engine driving the next huh and so on and so forth.

“Huh”. I agree with this. That moment where the meaning, the import, of something changes. Fundamentally. It can be an almost physical sensation. And you see anew as a result.

This is the advocacy significance, I think. When you’re faced with a bundle – 600 pages for a case tomorrow morning – the temptation to speed-read is overwhelming. And necessary: it just isn’t possible to spend too long with any one page. But you have to spend enough time; enough so that you understand where each page fits into the big picture, and so that – as the narrative evolves through your reading and consideration – your sense of the shape of the documents is sufficient to bring you back to a critical detail on page 332 (or wherever) whose significance will change if you can take the time, in the context of fresh understanding, to look closely at it.

There’s an analogy with one of Edmund King’s rules on how to lose a case (yes, I know – but it really is worth coming back to). Rule 8 tells you not to prepare cross-examination on your own. If you’ve time, and you have a team, read the whole thing individually – then read each page together, and talk about it. Truths and implications will emerge far more clearly.

Similarly, looking closely is akin to enjoying the small things. It’s all about the trees, as well as the wood – each complementing the other, and each deserving attention and care. Even love.

Whenever I lose cases (at least, those which had a decent chance in the first place), often it’s because either I haven’t put myself properly in the shoes of the opposition, or there’s some detail whose significance has escaped me. I’ll be trying to look more closely. Thanks, Craig.

Something beautiful: Cephalopods are cool. They just are. As I’ve written before, there are those who see octopuses in particular as something akin to sentient, and I wouldn’t disagree.

So this picture is both gorgeous and unsurprising. An underwater photographer left his camera in a rock pool – and its resident decided to have a play with it. With fabulous results. Enjoy.

Someone is right on the internet: Anyone who knows me knows that I’m not so much allergic to team sports as largely indifferent. Basketball’s the only one I’ve ever really enjoyed playing (very badly, but there you go); and I’ve occasionally watched live cricket with an appreciation as much of the occasion and the rhythm as of the sporting action itself.

(I’m a twin, and this was a source of unending frustration for my sporting brother when we were kids. The universe had given him a sibling of precisely the right age as a permanent playing partner – and made him a sports-hater. Thanks, universe.)

Football’s different. My feelings go beyond indifference and into active dislike – not so much for the sport itself, which is fine, but for the English expectation that everyone – at least, every male – is going to be into it. I’ve got no problem with those who love and live and breathe football. I have a huge problem when I’m sometimes classed as weird (or even antisocial) because I don’t.

This may of course be my age. I grew up in the days when a good deal of English football was primarily about muscularity rather than grace, or so it seemed to me. And Route One summarised all that was worst about it: the idea that booting the ball up the pitch was the only really English way to play.

I always wondered why (aside from the insane idea that finesse was somehow un-English) Route One came into being. I’ve seen the idea that heavy old-fashioned balls meant passing was too tiring. Well, maybe. But this piece on Fivethirtyeight (via FT Alphaville), about an early sports statistician called Charles Reep, rather appealed as an alternative explanation:

It probably wasn’t entirely Reep’s fault when England flamed out at Euro 1992, or when they failed to qualify for the 1994 World Cup. But it couldn’t have helped that they were playing a misguided style, informed by well-meaning but faulty statistical principles.

To find out where Reep went wrong – which is a lovely example of getting causation the wrong way round – read the piece. Not at all sure it stands up as an explanation of Route One, but it appeals nonetheless.

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2021ii12, Friday: Different ≠ worse.

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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?

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2021i29, Friday: remote learning.

JSJ3 Comments

A 10-day trial is tiring. Done remotely, it’s exhausting; a few thoughts on how to cope. And a couple of wise lessons on motivated reasoning and analogies: food for thought for us advocates.

Short thought: The first four weeks of January 2021 comprised two back-to-back employment tribunal hearings: a four-day one (albeit that it wrapped up in three) and a 10-day one. Both were conducted remotely, using CVP (the courts and tribunals service’s preferred videoconference system, since it works on a smartphone or tablet without the need for a download). 

Both, sadly, we lost. But doing that much remote hearing work in quick succession drove home some important points. I may expand into a proper piece at some stage, and none of this is particularly new, but for those whose remote experience may be limited to single-day trials or applications, bear the following in mind:

  1. They’re exhausting. It might feel lovely to be sitting in your study (assuming you have one – a fairly large assumption, I admit). But the lack of physical presence is surprisingly wearing. The need to be alive to non-verbal cues on postage stamp-sized thumbnails is taxing, while the lack of physicality is itself equally wearing. The ET judge in the 10-dayer religiously took a break every hour, and he was absolutely right to do so. Even so, after five days of witnesses I was absolutely shattered. 
  2. Screen space is critical. Don’t try to do this on a laptop alone – or even, frankly, a single big desktop screen. Two screens are a minimum. Play with the arrangement: having notes (I touch-type) and the videoconference immediately in front works for me, with the bundle off to one side. But everyone’s mileage varies. I also had an iPad set up as a third screen, carrying the witness statements, but that might not be necessary for everyone.
  3. Don’t use Word for notes. Or if you do, don’t try to use bullets or numbering. I have an M1 MacBook Pro, which is incredibly fast even by desktop standards. But I was keeping XX notes in a Word document, along with my questions. Everything was numbered and indented, and on day 2 typing lag became intolerable. I switched to an app without Word’s overhead (Obsidian – more of that another day) and everything went smoothly. Never again.
  4. Use the right A/V kit. In my case, a Blue Yeti mic, a Razer Kiyo webcam, and earbuds (Anker Soundcore ones). For a brief hearing I’d be OK relying on inbuilt mic and camera. But not for a multi-day. Why look and sound worse than you have to?
  5. Finally, back to exhaustion. Eat properly. Drink lots of water. Go for a walk or run every morning before the day’s hearing, and preferably after it’s done too before cracking into prep for the following day. Try to sleep (always a challenge for me). Enjoy the fact that you’re not in a hotel somewhere benighted. And accept that when the submissions are finally done, you’re going to flop.

Notwithstanding all the above, it’s clear remote hearings are with us for a while – and for interlocutory matters likely to remain the norm. Professionally, we owe it to ourselves to get used to them. So invest in the kit, learn to work paperlessly, find the setup that’s right for you. Otherwise, it’s like turning up to court with a bundle printed on paper the size of a credit card bearing your notes in invisible ink: it makes your life far harder, and it stacks the odds against your client. Not really the professional way to do things.

Someone is right on the internet: Earlier this week I wrote about tools for thinking. Tim Harford – FT columnist, More or Less presenter, role-playing gamer and someone who’s a good deal smarter than me – considered something similar in the FT yesterday. (For non-FT subscribers, Tim’s own blog usually carries his FT stuff about a month in arrears. For anyone on the RSS train, well worth following; for anyone else, well worth a regular check-in.) 

Tim’s focus was on motivated reasoning – similar to confirmation bias, where one’s need, desire or willingness to believe something can lead us to see truth where none exists. He uses as the basis for his tale a fascinating story of a fake Vermeer, which fooled the Netherlands’ foremost expert on the painter in the 1930s and became a cause célèbre when the forger was found to have sold paintings to the Nazis, but freed himself from a treason charge by proving his fakery. (He became something of a folk hero – with another slice of motivated reasoning cutting in as people ignored, overlooked or simply “forgot” that he was arguably a Nazi himself.)

Tim’s piece is fantastic. His key advice chimes well with mine, and is simple – if not always easy – to put into effect:

Any of us is capable of falling for a lie. There is no guaranteed method of keeping ourselves safe — except to believe nothing at all, a corrosive cynicism which is even worse than gullibility. But I can offer a simple habit of mind that I have found helpful. When you are asked to believe something — a newspaper headline, a statistic, a claim on social media — stop for a moment and notice your own feelings. Are you feeling defensive, vindicated, angry, smug? Whatever the emotional reaction, take note of it. Having done so, you may be thinking more clearly already.

Well worth reading. Tim is an excellent story-teller, and has a skill with anecdote and analogy that we advocates could usefully learn from. His podcasts, including Cautionary Tales and 50 Things that Made the Modern Economy, are short, elegant and fascinating. Excellent training materials for barristers everywhere.

On analogies: I never knew a silk called Edmund King, from Essex Court, who died just before Christmas of cancer. I wish I had; it seems he was a great advocate and human being. One of his final gifts to the profession was a wonderful piece entitled “How to lose a case”, published on Essex Court’s website, which gave a dozen or so pieces of excellent advice on what not to do in complex litigation. 

In a paragraph about the importance of making complex things seem simple, he stressed the value of analogies. I won’t spoil the piece, but he points to two cases in which he said a good analogy changed everything. Take a look at one of them: Harbourmaster at paragraph 27. The impact of the analogy is palpable. 

The rest of Edmund’s piece is fantastic too. (His intro, with its reference to marriage advice from a celibate priest, endeared him to me instantly.) Read and learn. I did. And as a result, regretted deeply the loss of a man I’ll never now meet.

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