Hindsight: Difference between revisions

{{office scene|III|iv|gazes admiringly at his own Insta feed, which consists entirely of touched-up selfies|silently fumes while the [[JC]], who has managed to elbow his way into what was meant to be a private meeting of important people, will now not stop talking}}

:'''[[JC]]''': What?

:'''[[Head of Legal Ops]]''': [''Gravely''] To add value as an [[Inhouse lawyer|in-house legal]] function we need to use [[Innovation|innovative]] tools to crunch [[data]], proactively spot emerging risks and escalate them to business.”

On every [[disclaimer]] any [[financial services]] firm has ever sent — and ever ''will'' send, in the history of the world, until the [[End of days|End of Days]] — however paranoid, overblown, absurd, weird or wonderful, there will be one constant, ringing reminder: one thing, which, above all the others it will say: “[[past performance is no indicator of future results]]”.

===A cold night in Vienna, 1808===

This is the human condition, summarised. Only ''once it has happened'' — [[past tense]] — and often, only months or years after that, can we ''possibly'' appreciate the significance of the unexpected.

===The category error: providing for the future by reference to the past===

And herein lies the tension and profound dilemma of the received approach to modern legal practice. For we commercial lawyers are charged with anticipating ''the [[future]]'' but we are sent out to battle armed with a methodology drawn exclusively from ''[[Past results are no guarantee of future performance|the past]]''. Just occasionally, this [[dissonance]] rears up and hits us, when the formal imperatives of [[legibility]] take priority over the logic of common sense. When, say, the financial controller insists {{sex|she}} must hold capital against undoubted shortcomings in a contract documenting a transaction that has already matured — a risk that ''did not come about and no longer can'', even though the reporting period rumbles on. That kind of thing.  

It is a persistent frame: by the time we get around to analysing any catastrophe and how it played out, all circumstances are known, all options have crystallised and all discretions have hardened. The employee who, with imperfect information and in the fog of war, tacked to ''starboard'' when hindsight revealed a safe harbour to ''port'' finds {{sex|himself}} short an very ugly option which those with executive responsibility for his performance will be mightily tempted to exercise. This is the lesson of {{fieldguide}}: the executive blames the [[meatware]], because by doing so, it exonerates the executive.

===[[Madoff]] and catastrophe===

But ''were'' they? This is where the historian’s perspective is more useful than the [[thought leader]]’s.<ref>Sidebar: {{author|Thomas Kuhn}}, the greatest of all philosophers of science, was neither a scientist nor a professional philosopher but a ''historian''.</ref> We know [[Madoff]]’s regulators were ''not'' asleep at the switch because we have {{author|Harry Markopolos}}’s testimony that they ''can’t have been'': he kept prodding them in the ribs with a stick and pointing out exactly the anomalies they should have been alarmed by.<ref>His paper to the SEC, in November 2005 —more than ''three years'' before Madoff eventually shopped himself (even then the SEC didn’t see it!), was entitled “The World’s Largest Hedge Fund is a Fraud.” If that won’t wake you up, nothing will.</ref>

It is interesting to that when executives appeal for change, for “[[revolution]]” — ironic, I know, but I’ve seen it happen — for “a new way of working” they are not talking about the revealed failings of their own narrative — it’s got them where they are, after all, so it can't be ''all'' bad — but is upon the inconstant performance of those mortal, expensive, fallible [[Meatsack|meat-sack]]s snoozing away at the switch. Thanks to overwhelming [[confirmation bias]], the idea that ''the switch isn’t working'', and ''it’s the hierarchy supporting the broken switch that is not fit for purpose'', somehow fails to occur.

{{sa}}

*[[Signal-to-noise ratio]]

*[https://www.youtube.com/watch?v=8PlLCKW4zuY The SEC [[general counsel]] trying to plead executive immunity from testifying before Congress]Representative Gary Ackerman (now retired) will forever be a ''Hero of the JC, First Class'', for this excoriation.

{{ref}}