Tag: litigation

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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2021viii19, Thursday: A failure of trust.

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A brace of Court of Appeal cases highlight both some fascinating litigation points – and why charitable trustees need to trust themselves, and their friends, a little less.

Like many people who’ve spent time in counter-fraud, I have a firm but nuanced view of fraudsters.

Nuanced, because part of the classic fraud triangle is “rationalisation” – the fraudster’s ability to convince themselves that what they’re doing isn’t really wrong. Not really. Not when looked at from the right angle, in the right light. (Albeit possibly only at 4.13pm on the second wet Thursday in October.) And not often, but sometimes, there’s almost genuine pathos in that rationalisation – particularly when it’s linked to a necessity which is caused less by greed than by some personal or family disaster.

But firm, because when you get down to it fraudsters are still essentially stealing someone else’s stuff, usually by lying to them or otherwise betraying their trust. And screwing with the trust someone places in you is, to my mind, one of the worst betrayals there is.

I could go off on a long tangent here about fiduciary obligations – for the non-lawyers, the term for the duties which arise in special kinds of relationship where you’re obliged to put someone else’s interests before your own, and not simply balance yours against theirs. Directors to their companies. Trustees to their beneficiaries. Solicitors to their clients. And so on. The tangent is tempting, not least because of a long talk with a client recently which I spent trying to convince them why what had been done to them, while patently wrong and immoral, wasn’t a breach of a “fiduciary” duty; and that calling it that would hurt their case, rather than helping it.

(We play with words, we lawyers, and forget sometimes that – as with any jargon – legal cant can seem to be a touchstone to the uninitiated, rather than a vessel of specific meaning.)

But I won’t, because what I’m really interested in here is a particular kind of fiduciary obligation: that of a charitable trustee. 

Because more than once in my career, I’ve seen charitable organisations – or those which, while not actually a charity, are non-profit and trying to do good – get taken. Badly taken. And while my primary visceral hatred is directed at the crooks (and, I admit, occasionally fools) who took them, there’s a small pipette of bile reserved for the idiots who let them.

Yes. Let them.

One example? A religious charity – an independent pentecostal church – whose affairs I investigated a decade or so ago, after they entrusted their money (that is, the money gifted by the faithful) to a friend of the pastor, who said he could produced a 60% annual return.

The return was indeed about 60%. Minus 60%. More than half the money was lost. Because the trusted idiot – and I think he was a fool, rather than a crook – had convinced himself and the pastor that contracts for difference were the right way to gamble with the church’s money. And because he was the pastor’s mate, none of the church elders lifted much of a finger to stop it happening. 

This kind of “we’re religious, so we should trust because our leaders say we should” is dangerous. It’s at the root of affinity fraud, the kind of fraud which rips through a community once the fraudster is inside the circle of trust, and which strikes religious groups particularly hard (but of course isn’t limited to them). And it’s particularly pernicious in the kind of religious groups with charismatic (small-c, I stress) leaders, tithing traditions, and few controls. Yes, ultimately it’s the fraudster’s fault, and yes, perhaps people should caveat the emptor just a bit. But in line with my core belief that certainty is not to be trusted, any leader who gives off a vibe that discourages his (usually his, rather than her) followers from doing their own due diligence is simply dangerous, unprincipled, arrogant and – put simply – in the wrong job.

That particular church case inspired me to put together a one-day course for pastors in training, as part of a ministerial training course run by a friend of mine. I only ran it once, but it centred on the vital importance of audit – and the idea that “trust, but verify” was the exact opposite of unfaithful.

Misplaced trust

All this was a long time ago, but I was reminded of it recently by a brace of Court of Appeal cases involving a genuine financial and legal tragedy. They involved a venerable law firm in Yorkshire, Dixon Coles & Gill, the Bishop and Diocese of Leeds, and four well-known national charities. 

And the former senior partner of the law firm, who over the course of a couple of decades stole millions – yes, millions – from the firm and its clients.

To tl;dr the background: the firm, DCG, had been around some 200 years. It was forced to close in 2016 after its two other partners discovered to their horror that Linda Box, their colleague, had systematically been bleeding funds not only from its client account but also from funds she personally held for several charities (including the Church). Unsurprisingly, the Church and the charities sued. Since the firm was an old-fashioned partnership instead of a more modern LLP, the two other partners – who, it should be said, were wholly innocent of deliberate wrongdoing – were in principle on the hook with unlimited liability.

In fact, the Court of Appeal allowed the remaining partners to benefit from the usual six-year limitation period, overturning a ruling in the High Court in Leeds that they should be found to have been “party or privy” to Mrs Box’s fraud under s21 of the Limitation Act 1980 – but it also dismissed an appeal from that same court’s ruling that the firm’s insurers were liable to pay out on all the claims (if the claimants were successful), rather than being able to limit total liability on the grounds that all the claims essentially arose from a single series of related acts.

They’re fascinating cases: in particular the first, for anyone interested in limitation (and that should include all lawyers involved in contentious litigation).

But I mention them in particular for a startling detail in the first-instance claim. At paragraphs 42 and 43, HHJ Saffman notes that the remaining partners suggest Mrs Box – in handling a substantial proportion of the Diocese’s money – was acting on a personal rather than professional basis. And he points to a 1995 letter where a past Bishop of Leeds seems to have allowed Mrs Box to have sole signing authority on a Church fund – a fund in relation to which he was (as Mrs Box wrote to him in 1995) “under no legal duty to divulge the accounts to anyone“.

I find this shocking, and frankly disgraceful. As some will know, I come from a Church background. My late father was a vicar, then a canon, then a bishop – retiring in 2011 after 15 years as Bishop of Winchester, one of the largest dioceses in the Church of England. I’ve met plenty of priests and bishops who took a pretty autocratic view of their rights, and of how they should be allowed to fulfil their obligations, although my dad – a believer in sunlight as the best guarantor of probity – wasn’t one of them. (Not for him the clergy equivalent of “I find your lack of faith disturbing,” although I’ve seen variants far too often.)

So I’m sure there are plenty of funds held by priests and bishops in the CofE with similarly – ah – opaque oversight structures. 

But to take such a fund, and give a single individual who isn’t even the office-holder the unaudited power invisibly to handle the cash? It’s insane. More than that: given that the funds are charitable, or at least the fruits of faithful labour by many hands and the generosity of many hearts. it’s simply immoral.

This simply shouldn’t be. No more should there be unaudited funds for charities and churches, than that churches should be able to mark their own homework when it comes to safeguarding. 

Not because churchpeople are uniquely bad. They’re not. Most are genuinely trying to do the right thing. 

But because they’re people. And in my view, it simply isn’t fair to put people in a position where – if they find themselves at risk of yielding to temptation – there’s nothing in place to hold them back.

Trust, but verify. It’s only sensible. But far more importantly, at least for people of faith like me: it’s un-Christian to do otherwise.

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2021viii10, Tuesday: When 1≠1.

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A judge makes the point I’ve been dying for someone to make about bundle page numbering: make the numbers match. Or suffer the (cost) consequences.

Thank goodness.

There are many bundling crimes which we’ve now become tediously used to since, in March last year, the world caught up with those of us at the Bar who’d already gone paperless.

Now a judge in Manchester – may he be blessed! – has tackled one of the more aggravating ones head on.

It’s page numbering. Yes, I know. Boring. Pernickety. The usual head-of-pin barrister small-mindedness.

If you think this, you’re wrong. Ask yourself how many hearings you’ve been through uttering the litany: “That’s page 47 on paper, my Lady, but page 54 in the PDF.” And waiting while someone, unerringly but understandably, goes to the wrong page. Over. And over. Again.

Thing is, it isn’t hard to get the numbering to match up. As long as there aren’t any last-minute additions, in fact it’s child’s play. In Adobe Acrobat, you can easily make (say) the index pages – and yes, the biggest single crime is forgetting to number the index pages as i-ii-iii, kicking off the actual substantive bundle at page 1. (Open the page thumbnails sidebar down the left hand side of the main window. Click on the menu icon just below the words “Page thumbnails”. Choose “Page labels…”. Pick your page range, select roman instead of arabic numerals, and you’re done.)

In PDF Expert, that isn’t an option – but instead, why not simply start page 1 with the first page of the index, instead of having it in a separate document? (On which subject: separate indexes are the spawn of Satan themselves. One document, please. Including the index. Just the one.)

I won’t go into online bundling services, but frankly if they don’t do this already, they should do. Pronto. (I’ve come to love Casedo, but its page number doesn’t have the option to include its own self-generated table of contents. It really should.)

Even adding pages isn’t too hard (eg “280a, 280b” etc). At least in Acrobat – you can do exactly the same thing. Add the extra pages. Then choose them in the range. Make the starting page the prefix (so “280” in this example). Choose “a, b, c…” from the dropdown. Away you go. Done.

So as HHJ Pearce says in Hodgson v Creation Consumer Finance Ltd, there really isn’t any excuse. The courts – from the Supreme Court down – have said for some time in guidance that this is how they want pagination to work. 

And yet I can’t offhand remember a single bundle I’ve been sent by an opposing party (I do my best to work with my solicitors to get it right) that has complied.

The next time, I might be tempted to take a point on it. Using the following from HHJ Pearce at [14]:

Whilst the Courts may have been willing to tolerate problems early in the COVID-19 pandemic, when solicitors were struggling with new challenges, including a lack of the traditional support from those who might assist with preparing bundles, as well as the sudden need to get to grips with the challenges of preparing electronic bundles in all cases, there has been plenty of opportunity by now to get to grips with those challenges. I repeat that most court users have done. Those who have not must realise that they are likely to be sanctioned for the problems caused by such failures.

Costs argument here I come. And I doubt I’ll be the only one.

I mentioned other electronic bundle crimes. 

The biggest, of course, is the failure to make the text searchable. ReadIris or Acrobat will usually solve that, but not always.

A close second is the delivery of documents in multiple emails, with further nested emails, instead of in a single PDF bundle: I’ve now taken to including time for putting that together into my fee estimates. 

There are myriad others. But honestly: as HHJ Pearce says, we’ve been at this a while now. If a single paper bundle was doable in the past, a single properly-prepared PDF bundle should be doable now. I don’t really think, for professional court users, that there are any excuses left.

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2021iv19, Monday: Privacy and the Supremes.

JSJ1 Comment

One of the most consequential cases on the law and privacy makes it to the Supreme Court next week. I’ll be watching. And some great stuff on gaming and moral panics.

Short thought: There’s no doubt that arguments about privacy are going to grow, and multiply, for years to come. On so many fronts, the question of what companies and governments can do with data about us affects us – literally – intimately. It’s going to be a central focus for so many areas of law – be it regulatory, public, commercial or otherwise – and we lawyers can’t and shouldn’t ignore it.

Which is why I’m blocking out next Wednesday and Thursday (28th and 29th) in the diary – at least as far as work will allow. Those are the days on which the Supreme Court will be hearing Lloyd v Google, probably the most important data protection and privacy case to make it all the way to the UK’s court of final appeal to date. 

As I’ve written before, the Court of Appeal fundamentally changed the landscape in 2019 when they decided that Richard Lloyd, a privacy campaigner, could issue proceedings against Google in relation to its workaround for Apple’s privacy protections. It’s no surprise that Google took the appeal all the way, since the CoA said (in very, very short) that a person’s control over one’s personal data had value in itself, and that no further harm – not even distress – need be proved for loss to exist. (There are other grounds of appeal too, but this to me is the most fascinating, and wide-ranging in potential effect.)

Next week is only the arguments, of course. Judgment will come – well, no idea. But Lord Leggatt is on the panel. I can’t wait to read what he has to say.

(I’ve had a piece on privacy brewing for some time. I just haven’t had the brainspace to let it out. Perhaps next week. I’ll try.)

Now hear this: I’ve always been rather allergic to team sports. Martial arts, on the other hand, have long been my thing. While I’ve dropped in and out, depending on levels of fitness and family commitments, there’s always been one at least at any given time which has given my joy like no other form of physical activity.

If one nosy trouble-maker had had their way, this would have been nipped in the bud. When I was doing karate in my teens, one clown wrote to my dad – then a canon at St Albans Abbey – claiming that my indulgence in this was Satanic and should stop immediately.

No, I don’t get the reasoning either. Needless to say, my dad treated it with the respect it deserved, and lobbed it into the wastebasket. And on I went, via aikido, tae kwon do and (these days) capoeira. No doubt this last, which I hope to keep doing with my current escola in Southend for as long as my ageing limbs can manage it, would have given the writer even greater conniptions, given that the music often name-checks saints and is thought in some quarters to have connections to candomblé.

But I think the writer missed a trick. Because back then, in the 80s, if he’d known I was a role-playing gamer he’d have been tapping totally into the zeitgeist.

By RPG I’m talking about pen and paper, not gaming. I loved these games; via an initial and very brief encounter with Dungeons & Dragons (2nd edition, for the cognoscenti – it was never really my thing), I found Traveller and Paranoia, and never looked back. It’s been a long while since I played, but my love of them, and conviction that they’re good and valuable, hasn’t dimmed.

These days, these games are pretty mainstream. But in the 80s, particularly in the US, they were the subject of significant, if now in retrospect batshit insane, panic. This panic is beautifully explored by Tim Harford in his podcast, Cautionary Tales. I warmly recommend it. You don’t have to know or care about the games themselves for the story to be engaging and fascinating, as an analysis of how societal panics can grow and evolve into something wholly unmoored from reality from even the most unpromising foundations. And yes, the irony there is palpable. 

(Tim’s a gamer himself of no little repute; I imagine a game GMed by him would be wonderful. But he’s fair on this, I think.)

The whole series is great (the one on Dunning-Kruger is particularly brilliant). Tim’s previous podcasts, in particular 50 Things that Made the Modern Economy, are just as good. And he always makes them relatively short, and scripts them properly. Not for him the 90-minute frustrating meander. Thank goodness.

Warmly recommended.

As an aside: A recent FT piece of Tim’s has just appeared on his own website (as usual, a month after FT publication). It’s superb. Lots of people have linked to it, but it’s good enough to do so again. 

It’s entitled: “What have we learnt from a year of Covid?” His last sentence is one with which I utterly concur:

I’ll remember to trust the competence of the government a little less, to trust mathematical models a little more and to have some respect for the decency of ordinary people.

Read the whole thing.

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2021i27, Wednesday: “The vital importance of audit.”

JSJ4 Comments

It’s a complex world, drowning in data. But there are tools to help the brain cut through. And they help litigators, too.

Short-ish thought/someone is right on the internet: An all-in-one today – mostly about thinking tools, but with a legal sting in the tail. (Promise!) When I’m talking to my daughter about the welter of information (and mis- and dis-information) that floods across her perception each day, I struggle – as, I imagine, do most parents – to boil the problem down into strategies anyone can actually make work.

“Check the source” is great – but mostly it’s so far removed it’s not going to be evident. “Check the intention” is better; if you can at least make an educated guess about someone’s motives, it tells you a lot. But it’s still too hard for the everyday.

So I’ve settled on a couple of things. In a way, they mean much the same; but there are subtle and I believe useful distinctions. And I think they work just as well for adults:

  • First, one about delivery: beware of certainty. Certainty usually implies an unwillingness to learn, or a refusal to accept nuance. The HL Mencken line – that “for every complex problem there’s a solution that’s clear, simple and wrong” – is only too true. As is the rueful joke that there ought to be a “You know, it might be a bit more complicated than that” party out there somewhere. Put all that together, and being very careful of stuff told you by people whose presentation of it implies that they KNOW they’re right, they KNOW it’s true, becomes a sound strategy.
  • Second, one about people. A core test for me, and one I try to persuade my daughter to adopt, is to look at the person I’m talking to and try to imagine them saying, “I could be wrong”, and meaning it. If I can, I’ll listen. If I can’t, there’s a problem. The other value of this one, of course, is one can apply it to oneself. Am I being sufficiently humble about my state of knowledge? Or am I trapping myself or misleading others about the risk of inaccuracy? (I used to use this one as a reporter sometimes when interviewing someone about some plan their organisation had. I’d ask them: what could go wrong with this? If I got a sensible, thoughtful answer, I’d tend to feel a lot better about the plan; it seemed, in modern parlance, like someone might have run a pre-mortem. If I didn’t – and goodness knows I very rarely did – the temptation to do a Paxman and ask myself “why is this lying liar lying to me” got an awful lot stronger.)

The other critical one, of course, is an awareness of confirmation bias. There are a million cognitive biases, but this one’s the killer – because it means we test information which confirms our core beliefs with far less care than stuff that doesn’t. 

God knows I fall down on all three of these, every day. But they’re vital tools; and if I can help my daughter adopt them, I’ll have done at least one thing right as a parent.

Hold on a minute, you may say: I thought this was a SIROTI. Where’s the link?

In fact, it’s to something I’ve linked to before, but it’s more important than ever. Dan Davies of D-Squared Digestnotoriety once coined three rules which he said he’d learned in business school and dubbed the “One Minute MBA”. He promulgated them after the Iraq War in relation to (as it turned out) the abject absence of the WMDs which were the ostensible reason for the 2003 Iraq invasion. In short:

  • Good ideas do not need lots of lies told about them in order to gain public acceptance. When anyone handwaves a bunch of deliberate untruths and says that the end justifies the means, walk away. Fast.
  • Fibbers’ forecasts are worthless. Simply put: you can’t fudge or mitigate or moderate forecasts made by a liar. They’re worthless. Ignore them altogether.
  • The vital importance of audit. You need to set the success boundaries for a project before you start – and then you need to check your working afterwards. Anyone who won’t do the first, or seems to fail to want to learn from the second? Again, ignore them if you can. Vote them out if you can’t. They’re dangerous.

I’ve found them enormously effective as a test for all kinds of other things, both political and otherwise. I’ll leave their application to our various current travails as an exercise for the reader. 

The last of these three, the audit bit, is to my mind the really important one – and it chimes back to the original tools. Acknowledging how things actually went – asking the “so how did we do?” question and wanting to know the answer – isn’t just basic intellectual honesty; it’s the most fundamental requirement for doing things better in the future. And checking your working is at the heart of that.

Own your errors. Learn from them. Do better. Anything else, from anyone with any kind of responsibility to others, is a betrayal of that responsibility.

Don’t get me wrong. I’m writing badly if for a second I seem to be falling into the trap of putting all public figures into a big box marked “liar”. Humans lie. It’s what we do. The important thing is how much, when and why. It’s too easy, and ultimately incredibly self-defeating and damaging, to play that political game. 

But the next time some grand plan is espoused, by anyone, listen for the lies told to sell it, the forecasts made, the success metrics. And then watch out later on to see if those metrics are taken seriously – or are handwaved. It’ll tell you a lot about whether you can trust those making the play.

(And now for the legal bit. I’m a great believer, in court, in crafting a narrative. Starting with one’s case theory, it’s vitally important to end up with a story that makes sense. A lot of things can happen during a case, of course, but the team with the most Occam’s Razor-friendly story to tell starts comfortably ahead. 

This is where the One Minute MBA can be really useful. On the one hand, if you can show exaggeration or false forecasts from the other side, that’s a great way to undermine credibility; and if they’ve skirted around anything auditable (or have tried to handwave their promised outcomes later) that, too, is a fantastic lever on which to push.

On the other, of course, if it’s your side that’s got the outlandish predictions and the dodged promises, don’t under any circumstances hope no-one will notice. Your story will have to explain them, rationalise them – if at all possible, find a way of making them sound sensible rather than left-field. Otherwise no-one’s going to live happily ever after.)

Combine a suspicion of certainty, “I could be wrong”, an awareness of confirmation bias, and the One Minute MBA, and that’s a powerful toolbox for dealing with the blizzard of BS in which we all find ourselves. (An appreciation of the difference between lies and BS is useful too.) 

Might be a bit much for a 14 year old, not least because I (like all adults) struggle to put it into effect myself. But I think it’s a start.

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