2021v5, Wednesday: Stories.

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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2021ii3, Wednesday: Getting away with it.

Fraud hurts huge numbers of people, hugely – yet it’s a law enforcement also-ran. When might that change? And, staying with crime, fantastic writing about my favourite detective author of all time.

Short thought: For anyone involved in dealing with fraud – as an investigator, an insurer, a lawyer or otherwise – the past couple of decades have been frustrating beyond bearing. Those 20 years have seen the resources devoted to investigating and prosecuting private-sector fraud dwindle to near-nothing, while fraud grew to half of reported (if not always recorded) crime (as the online environment both created new attack vectors and exposed a huge population of potential targets) and losses estimated by some in the hundreds of billions.

Some blame banks. And they’re not beyond reproach: the schemes set up to repay victims of authorised push payment or APP fraud (where someone bamboozles you into making a payment to the wrong recipient) have been dogged by reluctance, under-resourcing (again) and a tendency by some institutions to pin the blame on the victim far more than may be entirely justifiable

But there’s a fundamental tension here, as exposed in the recent case of Philipp v Barclays Bank [2021] EWHC 10 (Comm). A bank’s primary duty is to carry out its customer’s instructions, not to police those instructions on the off-chance there’s a fraudster behind them. There is a duty to act on reasonable suspicion of fraud or dishonesty; it’s called the Quincecare duty. But it’s of limited application, and (as the Court found in Philipp) doesn’t apply where it’s the customer themself, rather than an agent or someone purporting to act for them, who’s delivering the instructions. The public policy trade-off between the mandated duty and fraud protection is a real one, not something which can simply be refashioned on the fly.

So what about the regulators? Most fraud isn’t undertaken by regulated institutions. No doubt regulators such as the FCA could do more to police the perimeter of their powers – and as Dame Elizabeth Gloster has found in relation to the London Capital & Finance fiasco, it has often been shortsighted at best in how it approaches that task. But it’s not a complete answer by any means.

I’m not sure there’s a simple answer. (Which calls to mind HL Mencken’s maxim: for all complex problems, there’s an answer that’s clear, simple and wrong.) But a recent report by RUSI suggests a re-framing of the problem which I like, and which I think puts the emphasis where it belongs. 

RUSI sees fraud as a national security issue. It takes the UK’s three national security priorities – protecting our people, projecting our global influence, and promoting our prosperity – and points out that fraud does serious damage to all three. It impoverishes and immiserates the people of the UK. It damages our standing by making us seem to be a paradise for untouchable crooks (including substantial involvement by organised crime) and launderers. And it undermines our prosperity by leaching from the public purse and leaving us with a financial system and economy where transactions can’t be trusted. 

Taken together, it posits (I think rightly) that fraud imposes a uniquely damaging disruption not only financially but on society as a while

It suggests what it calls a “whole-of-system” approach, whereby non-criminal justice state actors including intelligence services work together with the criminal justice system to tackle the issue. Unsurprisingly, it calls for significantly enhanced funding – not just for existing specialist forces such as the City of London Police, but nationally. And it makes the case for clearer accountability and leadership.

Of course, you could say we’ve heard this all before. And yes, we have: the 2006 Fraud Review said some of these things, albeit in a different way, and a retrospective 10 years later found little had changed

But the losses are now staggering. Everyone knows someone – a relative, a friend, a business partner – who’s lost sometimes significant sums to fraud. The pandemic has created huge new opportunities for fraudsters. And if the government is even slightly serious about “levelling up”, or “building back better”, then keeping billions in honest circulation rather than in fraudsters’ pockets has got to be a good idea. Aside from anything else, the well-known principle of loss aversion indicates that if someone loses cash to fraud, they’re even less likely to spend what they have left. Not a great help to a pandemic-stricken economy.

And that starts, inevitably, with resourcing it in line with the huge harm it does.

Put more simply: if not now, when?

Someone is right on the internet/things worth reading: I’ve been a sucker for a good mystery all my life. As a kid, I thought Poirot and (later) Miss Marple were the best. Lawrence Block’s Burglar books were a later unashamed pleasure. I haven’t quite read all of Rebus, so I’ve gone back to the beginning and started over before reading the latest ones.

But if you backed me into a corner and said I could only have one detective fiction creator, there’s no contest. Dorothy L Sayers was, is and probably ever shall be the one for me, and Peter Wimsey is my sleuth. Five Red Herrings takes the cliche of train timetables and makes a masterpiece from it; Murder Must Advertise gives us a glorious double life; and Busman’s Honeymoon somehow combines mystery and romance into a piece of sterling literature.

But Gaudy Night is special. The point of view changes to Harriet Vane, initially a secondary character (in Strong Poison) but now a co-star in her own right. And – as beautifully explored in the New Yorker (sorry, paywall – but this could be one of your monthly freebies; it’s worth it) – an exemplar of how Sayers laid the groundwork for today’s flowering of superb female mystery authors. The article’s worth a read. And the books? Just go for it.

(I should also mention the supremely well-done BBC Radio adaptations – all available on Audible, with Ian Carmichaelas Wimsey and Peter Jones, famous among geeks for being the voice of The Book in H2G2, as Bunter. Not quite up to the Sherlock Holmes standard set by Bert Coules with Clive Merrison as Holmes and Michael Williams as Watson – but really, really close…)

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2021i22, Friday: floating cats.

It’s Friday. It’s been a long week. So seriousness can go hang.

Short thought/good readChristopher Paolini’s To Sleep in a Sea of Stars is a huge book. A quarter of the way through, it’s proving to be a fine one, too. 

In line with my normal principles, no spoilers; and there are reviews aplenty that a quick web search will produce. (There’s also the first several chapters online to read, and to listen to. So no need to dive in and purchase without tasting first.)

But there’s one lovely bit that came at a perfect time. Our kitten, Iroh, is proving to be an acrobat par excellence. Her ability to jump is remarkable; it involved earlier this week an almost parkour-like bounce off a wall to get to the top of a bookcase. And as for her tendency to jump up and grab door handles with both front paws: well, no-one’s yet told her that she doesn’t have opposable thumbs, clearly.

Which is why daughter and I idly speculated a couple of days ago about whether cats would make good space pets. Their grace, balance and agility would be unbeatable in micro-gravity, we mused.

Blow me down if Paolini doesn’t then, the very next day, produce a cat in a starship, grabbing a ladder with its paws and launching itself like an arrow down a corridor. Fantastic stuff. 

If only it wasn’t called Mr Fuzzypants, puir wee beastie. But you can’t have everything. 

Someone is right on the internet: This is just beautiful. For Japanophiles like me, Spoon & Tamago (which means “egg”, incidentally) is a lovely site, bringing all kinds of Japanese artistic and cultural wonder to our lives. 

And not just artistry. Natural wonder comes, too. As with these fabulous pix from Japan’s northernmost main island, Hokkaido. I had no idea this freezing phenomenon was possible. And my life is the better for knowing it is.

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2021i18, Monday: Eight legs. Nine brains. All good.

Again, a quick hit because I’m in court later this morning. But this one’s for lovers of octopuses everywhere.

Someone is right on the internet/books to expand the mind: Not too long ago I highlighted Children of Ruin, by Adrian Tchaikovsky, as a book I was looking forward to. (Update: I’m done with it. It was fantastic.) I do revile spoilers, but I’m really not giving anything much away when I say the book involves octopuses in a pretty big way.

I love octopuses. They’re gloriously weird (video embedded below, but linked here if you prefer that sort of thing), in comparison to us bipedal vertebrates who struggle with the idea of a creature with – in effect – brains in each leg. (That’s leg, not tentacle. Tentacles are feeding appendages with suckers only at their ends.) There’s a serious body of thought (encapsulated in the wonderful Other Minds, by Peter Godfrey-Smith) that postulates that they’re sentient – at least to some degree, assuming sentience is a matter of degree rather than a digital yes-no question – and that they’re therefore the closest thing we’ve yet encountered to a wholly alien intelligence. At least from our (perhaps limited) primate point of view.

(I now recall eating a tiny baby octopus, whole, served as an appetiser in Japan, with a fair degree of revulsion. It was 20-odd years ago, but still…)

And to make it even better, it turns out that at least two members of the Outer Temple family – one of this year’s pupils, and one of next year’s – are as fascinated by them as I am, if not more so. I can’t believe we’re alone in forming an informal cephalopod fan club. Who’s with us?

(If your taste in cephalopods stretches beyond the octopus, then security guru Bruce Schneier has, for years, put up a weekly Friday Squid Blogging post. Admittedly, sometimes – as here – it’s a recipe (ouch); and it’s also an excuse to provide a forum for his readers to chat about security issues. But it’s a lovely touch. Well worth a look.)

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2021i12, Tuesday: Portrait, for preference.

Why do most iPad cases only do landscape? And bookshelves to die for.

Short thought: I’d be the first to admit I’m reliant on my iPad. I’ve owned 4 of them: a first-gen, an iPad 3, a 2017 iPad Pro 10.5”, and now a 2018 iPad Pro 12.9”. They’ve been first-line writing tools, media consumption devices, and portable libraries.

Now, as a barrister, more than ever I can’t imagine working without one. Particularly when, as is the case, I sync all my case files and background docs: I can essentially sit down in an armchair, read and mark up bundles, refer to authorities and practitioner texts, and scribble (literally or figuratively) notes into one of several apps which also sync beautifully, so everything is back on my mac when I’m next at my desk. And the 12.9” screen is big enough to be the bundle when I’m physically in court. Perfect.

But there’s one thing I don’t get. A good case is a must, of course – so why do so few hold your iPad in the portrait position? For reading, or typing, it’s perfect. A single page of a book or authority. A single sheet of a Word document. What’s not to like?

I only know of two manufacturers who do this well: Pipetto and Moshi. I’ve tried both, and favour Pipetto. There are others on Amazon, sometimes a good deal cheaper; but I’m not confident on quality. And some that rotate – but bloody hell, they’re bulky, whereas Moshi’s and Pipetto’s remain both sleek and light. Or you could have a separate stand – but haven’t you got enough bits and bobs already?

Am I the only person for whom this is a thing? And why do I never see portrait cases in best-buy lists? Seems bonkers. If you have an iPad and you’re a barrister, I do recommend you look into it. It’s a bit of a game-changer.

Someone is right on the internet: Even in this paperless era, books are special. The feel of the pages. The weight in your hand. A beautiful binding. For some, even the smell!

So there’s also something magical about bookshelves. Admit it: we all scan someone else’s bookshelves when we’re in a room of theirs. We did so physically; and we’re certainly doing it now, virtually, squinting behind people’s heads at what their webcam will pick up. (Hands up: I’ve got the White Book carefully positioned behind me, along with a copy of the Employment Law Handbook I co-wrote. But then I’ve also got a book of Hiroshige’s 100 Views of Edo, which is just as much a part of me as the law is. Or – for less formal occasions – an Asterix book…)

So this gallery of unique bookshelves generates pure envy. Some are slightly bonkers, certainly. But some are gorgeous. And some – well, let’s just say we need new shelves in the front room. And I’ve got ideas.

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2021i6, Wednesday: CVP doesn’t like Macs.

Or maybe it just doesn’t like me; but there’s a solution. And Octavia Butler is glorious.

Short thought: I’m in the middle of a multi-day hearing, which moved to a remote setting (using CVP, the browser-based vidconf platform whose pending introduction was massively accelerated last year to deal with the pandemic). I’m not sorry about that; four days in an ET hearing room in Croydon amid Tier 4 didn’t exactly delight. (Bury St Edmunds ET did the right thing on Monday, moving my 10-day hearing starting on the 13th to CVP. Not all courts and tribunals are behaving so sensibly, but kudos to these two – and the Lord Chief Justice has now made it pretty clear that remote or hybrid is the default, unless justice can’t be done that way.)

While I’d infinitely prefer to do it over Zoom or even Teams, the CVP rollout is nonetheless one of HMCTS’s success stories.

However – and perhaps oddly since a large number of barristers use Macs (at least, the ones I know) – I’ve been unpleasantly surprised at how poorly CVP plays with them. My first few CVP hearings, Chrome – the recommended browser – refused to recognise any camera or microphone, built-in or otherwise. Firefox worked, but wouldn’t access my external webcam and mic; only the built-in ones. You can access CVP through Teams or Skype, but some of the functions are restricted. (And on older Macs, such as my previous machine, a 2018 MacBook Air, Teams sends the fan screaming; although the new and lovely M1 MacBook Pro is just fine.)

I’ve finally (I think) found a solution to the Mac/Chrome/CVP misery. It’s an annoying workaround, but at least it seems to do the trick, which is to:

  • Quit Chrome
  • Go into System Preferences/Security & Privacy/Privacy
  • Untick Chrome in the list of permissions for both Camera and Microphone. (If it’s not in both lists, add it to each with the little “+” button. THEN untick them.
  • Then retick them again…
  • And restart Chrome.

Your mileage may vary. I seem to have to do this every time I leave the “room”, which is a pain. But at least it works.

Someone is right on the internet/something I really need to read: For someone who firmly recognises that great literature is great literature irrespective of its genre, I am sinfully under-read when it comes to Octavia Butler. The wonderful Brain Pickings newsletter drove this home to me in its Christmas issues, by linking to this insightful, impactful selection from the verses which head the chapters in Butler’s Earthseed books.

One rather painfully on-the-nose example:

Choose your leaders with wisdom and forethought.

To be led by a coward is to be controlled by all that the coward fears.

To be led by a fool is to be led by the opportunists who control the fool.

To be led by a thief is to offer up your most precious treasures to be stolen.

To be led by a liar is to ask to be told lies.

To be led by a tyrant is to sell yourself and those you love into slavery.

Parable of the Sower and Parable of the Talents are now on my Kindle. Next up, I think. And Brain Pickings is brilliant. Well worth a look.

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2020xii30, Wednesday: Soul food.

Without the sustenance of something we do for our souls – even if we’re bad at it – we lose something vital to being human.

Short thought: Everyone needs a hinterland. Something (or indeed somewhere) they can retreat into: as an escape, or for solace, or simply for the sake of sanity. It feeds a soul which can otherwise wither and die.

My soul food? Music. Always has been. I’m a (poor) piano player, helped somewhat over the past year by my 2019 birthday present to myself: a subscription to a wonderful jazz and improvisation teacher called Willie Myette (his site, Jazzedge, has been a haven).

(And I’m getting better. Very slowly. And re-learning the essential lesson: to get good at anything, you have to accept being pretty bad for a while.)

But honestly, I’ve realised it doesn’t matter what you do. Play something. Write. Build. Make. Walk, or run, or ride, whether with music/podcast/audiobook or in blissful silence. Just something that’s not passive consumption or work. Something that can become a habit of self-nurture.

(I’m not including reading in the above. Because – call me an elitist; please, go ahead – I regard reading long-form things, by which I mean anything long enough to have some structure and thought behind it, as something as fundamental as breathing. Not so much soul food as a basic necessity.)

If the past year of strange days that seem to stretch for weeks, and months that have fled by like days, has taught me anything, it’s that without regular intakes of soul food we lose something critical to being human.

So find your sustenance. Treasure it. Be bad at it for as long as it takes. Your soul will thank you.

Nothing wrong with a re-read: I’ve never understood those who say books aren’t worth reading twice. I love a good series, and there’s something special about re-reading the last one (or, for TV, re-watching it) before getting into something new. Adrian Tchaikovsky’s Children of Ruin is on my Kindle maybe-next-up list, and I’ve nearly finished a re-run through its predecessor, Children of Time. It’s awe-inspiring; a consideration of genuinely alien thought and culture in the grand tradition of CJ Cherryh’s Chanur and Foreigner books. (Again with the series…) It doesn’t hurt that its non-human species reminds me of my favourite gaming alien race of all time, Traveller’s Hivers. They were always such fun to play…

Someone is right on the internet: With thanks to Anne Helen Peterson, Anne Applebaum writes about collaborators in The Atlantic. A long read, talking about the US GOP and dealing with the use of strategic and voluminous lies. But worthwhile.

Things I wrote: some time ago I looked at bundling apps for barristers. A good one would be the holy grail. So no surprise there isn’t one. Not yet. I’d favoured one; but now I’m reconsidering. And I’ve committed hard cash too.

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