2021iv19, Monday: Privacy and the Supremes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Frankly? It’s about being a man.


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2021ii24, Wednesday: freedom.

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

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

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


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

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

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

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

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

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

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

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

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


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2021ii12, Friday: Different ≠ worse.

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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


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

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


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2021i29, Friday: remote learning.

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

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.


(Don’t forget – if visiting a site doesn’t float your boat, you can get this stuff in your inbox. Subscribe at https://remoteaccessbar.substack.com/.)