Journal

Questions and Answers

12/11/2015
A financial plot with error bars suggests complexity

[How would you] blend the complex facts of, say, a financial fraud case, maybe one in which banks or bankers were in the dock, with your [simplexity] approach?

When the Justice Department goes after a “responsible corporate officer” at some multinational banking institution, they often bring charges under some exceedingly convoluted federal regulation, and adopt the jargon and doublespeak of the institution charged. I think this trend has two separate causes.

First, some of the federal regulations are intentionally indecipherable. Since the conduct being regulated is complicated, and the regulations are written by specialists familiar with the complications, some degree of confusion is unavoidable. But when confronted with the labyrinthine prose of federal securities regulations, one suspects something more sinister is at work. Loopholes proliferate in a thicket of tangled and overwrought bureaucratese.

The second issue is that the totality of global finance is beyond a single human’s comprehension. The reason, again, is multifaceted. The vast scope of world commerce, the interactions between economics and governance, the influences of personality and chance—these are just some of the factors that one would need to master to understand the whole. It’s a game for institutions, not individuals.

So far I’ve only set up the question in more detail. That’s because, while simplification is desirable, being simple-minded is a deficiency. In the process of distilling the requisite criminal intent from an opaque stew of deceit, one must be wary of oversimplification. Especially in situations with inherent complexity, we should not forego nuanced insight for bombast and mass appeal.

With that in mind, I will give my hypothetical strategy for a case against a responsible corporate officer at Bear Brothers, an investment bank engaged in the sale of misrepresented mortgage-backed securities. The standard approach might be to educate the jury: Define the industry terminology, outline the congressional history of the statute, and describe the harm caused to investors all over the world.

My formula would be somewhat different. I would of course, seek to prove that Bear Brothers engaged in unlawful and unjustifiable conduct with real adverse consequences. But my focus would be on the visceral wrong:

The investment scheme sold by Bear Brothers wasn’t just ill-fated, it was either intentionally rotten to the core, or criminally negligent by reason of willful blindness. Toxic assets were secretly bundled together and aggressively pushed on unsuspecting investors. If Bear Brothers were selling juice, they would have blended up rotten apples and put them in a pretty black bottle. That their product was rotten, despite the stylishly dark packaging, was easily foreseeable. The contents of the bottle are the responsibility of the bottler. Wholesome and honest products are sold in clear packaging—so consumers can see what they’re getting. Hiding the origin and the contents of what’s being sold behind an artificial shroud indicates something more than a mistake.

Argument by analogy is just one way to make the complicated more accessible. I would also use multimedia, word choice, and repetition to drive home my key concept: Deception is wrong. Bear Brothers knowingly deceived their victims. The victims were tricked by the deceit of Bear Brothers.

So what IS a capias, anyway?

While I’m not quite as comfortable with the terms as I’d like, a capias is essentially an arrest warrant. As far as I can tell, we use the Latin terms to differentiate between different types of arrest warrants. So an alias capias is a warrant for failure to appear, capias pro fine is a violation of probation, and capias in general just refers to all types of court orders authorizing the police to go find someone and drag them into court.

I’m not sure why we use this terminology, but an interesting aside is that prosecutors have a type of investigatory power under F.S. §27.255(1) to seek a capias independently of a police investigation. (Most of you already know that, but I just think it’s cool.) Prosecutors of economic crimes use that power a lot more often because of the complex nature of financial crimes you previously noted.

And what does WST mean?

WST is “waive speedy trial.” It’s pretty much the first thing that happens, at the first disposition, in every case I’ve ever seen. It’s what allows seemingly trivial cases to drag on for months. The right to a speedy trial is probably the least respected constitutional right, because it’s the most commonly waived.

Overall, would you say the externship experience has met the goals you had for it when it began?

Since my goal is to work as an attorney, I can’t say the experience has achieved my goals yet. However, I know the experience has set me up to succeed. I’m somewhat modest, so I hesitate to say this, but I finally feel like the momentum is in my favor. I have so much “good luck” every day. I feel like I’m just being carried along to where I wanted to go all along. But because I know that my fortune is directly proportional to my effort, I know I’m finally starting to reap the harvest from the seeds I’ve sown.

Any ideas for how [your internship] might have been improved?

During my first internship, I was assigned a faculty advisor and I wrote my journals in the required worksheet format. This semester, I chose my faculty advisor (because he’s brilliant, and helpful, and just generally awesome), and I wrote about what I felt, and in my voice.

Even though I had a better position and better support from my field supervisors last semester, I think I learned more—and grew more—during this semester. I can’t say my experience will translate to everyone, but I think the program would be greatly improved by focusing on the pedagogical instead of the prescriptive. Completing assignments according to a regimented schedule, simply to get credit for doing so, doesn’t facilitate growth the way that unstructured communication and genuine feedback does.

Put more simply: Thank you.

What would you say has been its best feature?

Having the aforementioned faculty advisor.

Any advice for future externs either coming to the office where you have externed or in general?

I got a great piece of advice my first week: Don’t take anything for granted. Being part of such a big office is highly competitive.

Don’t take anything for granted. Appreciate every moment for what it is. You will learn as much from your haters as you will from your mentors. Adaptability and determination should become your mantras; You will need both to survive and a bit of luck to succeed.

Nothing worth having can be had for free. You will have to earn your reputation, and you will have the reputation you’ve earned. Make sure that at the end of each day, you can go home sure that you did at least one positive thing for yourself, one positive thing for someone else, and one positive thing for the office. You should always seek to improve your personal high score on these metrics. You should try to be better than the average in everything you do—because that’s how you will become extraordinary.

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