I consider your attempt at a quantified expected cost analysis a helping hand, not pushback, and I appreciate it.
Accepting it as a data point, a few quick points in response:
Your comment only addresses the self-interest angle, which was a relatively small part of my post. It (understandably) ignores the impacts on others and the systemic impacts that I tried to highlight, which I don’t think can be disentangled from the self-interest analysis so easily. I’m not sure those additional impacts are amenable to quantified expectation analysis (though I’d be happy to be proven wrong on that), but we shouldn’t just ignore them.
I think your numbers are low at the outset, but I don’t think any tweaking I’d do would cause us to be off by an OOM. That said, I think you’ve established a floor, and one that only applies to a witness with no potential liability. Accepting your numbers for the sake of discussion, the time estimates sit at the bottom of towering error bars. And that’s assuming we’re talking about an individual and not an organization that might have orders of magnitude more documents to review than an individual would, attorney-client privilege and other concerns that complicate things greatly and require a great deal more attorney time, and potentially many individuals involved as witnesses, with all the associated costs for each one.
The expectation analysis also (again, understandably) only addresses time and money and does not address mental and emotional impacts. Such things are obviously difficult to quantify, but they are worth taking seriously. The legal system fails to address these issues at basically every turn, and causes a great deal of suffering as a result.
On the point about lawyers being overly conservative, I think from a 10,000-foot view assessing emergent trends across all legal advice given in all situations, I agree with this. But when you dig into individual instances of legal advice, the idiosyncrasies of each situation make applying a heuristic based on emergent macro-trends difficult to justify. I recognize that’s not a solution to what I agree with you is a problem, but I think it’s an important part of the problem to recognize in the context of this discussion.
I consider your attempt at a quantified expected cost analysis a helping hand, not pushback, and I appreciate it.
Thank you! I am glad.
Some further thoughts in response:
Your comment only addresses the self-interest angle, which was a relatively small part of my post. It (understandably) ignores the impacts on others and the systemic impacts that I tried to highlight, which I don’t think can be disentangled from the self-interest analysis so easily. I’m not sure those additional impacts are amenable to quantified expectation analysis (though I’d be happy to be proven wrong on that), but we shouldn’t just ignore them.
I do admit to failing to understand your case that the impact on others and the systemic impacts are expected to be negative, not positive.
It seems that our prior should be strongly that making the courts have more relevant information will overall cause them to make better decisions, and while you list some plausible scenarios of negative impact, the scenario of “someone says something true publicly that then gets used in the lawsuit to help identify the circumstances and details of the crimes that appear to have been committed in a way that both makes justice more likely to be achieved and saves everyone time” seems by far the more likely outcome.
My guess is that if you had a class action lawsuit by the FTX credits or people who deposited their money into FTX that they would pretty strongly prefer more people go give more information on FTX publicly, since that will likely make their job easier, not harder, and as such I think the sign of the secondary effects here points strongly in a positive, not negative, direction.
I think your numbers are low at the outset, but I don’t think any tweaking I’d do would cause us to be off by an OOM. That said, I think you’ve established a floor, and one that only applies to a witness with no potential liability. Accepting your numbers for the sake of discussion, the time estimates sit at the bottom of towering error bars. And that’s assuming we’re talking about an individual and not an organization that might have orders of magnitude more documents to review than an individual would, attorney-client privilege and other concerns that complicate things greatly and require a great deal more attorney time, and potentially many individuals involved as witnesses, with all the associated costs for each one.
I agree that if you have potential liability the costs might be higher, though it’s a bit unclear what our moral imperative in that case should be (like, depends on whether your liability here is the result of kind of crazy laws or not).
I think there are definitely some individuals who have more at stake here, and where it probably makes sense to be more quiet, though I would be quite surprised if this includes most of the EA leadership.
I feel a bit confused about how much organizations could get involved in this situation, and would appreciate more datapoints on what it means for an organization to get involved in this at a level higher than individual witnesses. I understand the obligations that individuals are under if they are called in for testimony, but don’t understand the obligations that organizations could be under in a case like this.
The expectation analysis also (again, understandably) only addresses time and money and does not address mental and emotional impacts. Such things are obviously difficult to quantify, but they are worth taking seriously. The legal system fails to address these issues at basically every turn, and causes a great deal of suffering as a result.
I agree that there are substantial costs here, but I also want to talk about the symmetric costs on the other side that strike me as substantially greater. My sense is most people will suffer a good amount more stress from trying to be quiet about this topic for many years, and will incur much greater costs from there being a lot of latent concern and anxiety for many years as people stay quiet, and that the mental and emotional impacts of that will be much greater than the impact of being involved in the proceedings itself, at least in the aggregate (I do think some individuals will have a pretty bad time with the court system, but I think approximately everyone in EA will have a pretty bad time if discussion around this topic stays guarded for many years).
Criticism of the US model of a strongly “adversarial” justice system is definitely valid; it wastes a lot of resources on inefficiently resolving certain sorts of disputes. However, the bankruptcy case is in a US federal court, and at least most of the key players are within the jurisdiction of said court. And I don’t think you usually get to a fair, equitable, or efficient outcome by not asserting your rights and interests when the other side is going out with guns blazing. The system tends to give both sides some good cards and some cards that suck; getting an outcome that is fair to all involved generally involves giving up your good cards in exchange for the other side giving up theirs too.
There is a parallel system of alternative dispute resolution (ADR) like mediation which tends to be much more efficient and more likely to produce outcomes everyone can live with. But it requires give and take by both sides, and right now the debtors are not in a position to engage with it. They have much more pressing issues to deal with in the next few months, like trying to track down $10B in missing crypto before it ends up untraceable or outside the practical control of a US court.
In my view, many organizations do have a moral obligation to return some of the funds—and an ADR process is the best way to do that. It is reasonable for the organizations to ask for dismissal of any claimed liabilities they should not morally have to bear in exchange for that.
Most litigation of note will be against organizations—like Willie Sutton didn’t actually say about banks, because that’s where the money is. To me, the likely story is that corporate counsel is advising organizations about the desirability of directing their employees to stay mum to protect the organization’s legal interests. In fact, organizational counsel does not represent the employees (which is a good thing to remember if you ever are involved with a lawyer at work!) That directive may incidentally benefit the employees and directors, though.
It is really difficult to give specific examples of the corporate/individual interplay because we don’t know what the identified legal risks are. But two general principles: first, an employer is generally liable for an employee’s actions in the scope of the employee’s employment. What “in the scope” means is pretty fact-specific. As an extreme example, we have the Department of Justice arguing at the moment that denying allegations of sexual misconduct from decades ago is in the scope of employment of the (former) U.S. president.
Second, corporations lack minds and cannot “know” anything other than through affiliated people. So for instance, if the CEO of Organization X comes on here and writes that he knew A, B, and C (at a time they were CEO), that will probably establish that Organization X knew A, B, and C. That might or might not be the case if a more junior employee said that they knew A, B, and C but higher-ups did not know. All that is to say that the speech of affiliated individuals tends to have effects on the legal interests of the organization too.
Unfortunately, because none of us know what is being discussed by the people involved, we are limited to speculation about what might be going on. Speculation is a poor substitute for information, but it can’t leak knowledge (that the speculator does not have) or be attributed to a person or organization (with whom the speculator has no affiliation). I know that is not very satisfying.
Sorry for the delay in responding here, and apologies in advance for keeping this one short.
Your position appears to assume that speaking outside the court process after the fact is likely to add accurate information to the public record and help everyone get to the truth. One of the main thrusts of my OP is that this is not the case. Instead, speaking outside the process after the fact is more likely to create confusion instead of clarity, along with all the other negative effects I walk through. I’m speaking strictly from my experience and in the abstract here, but I think that’s where we disagree. Even information provided carefully, with counsel, under the controlled circumstances of the judicial process can be problematic, but it at least has the benefit of being relatively structured and under oath. It’s much more likely to help everyone (including class action attorneys) get as close to the truth as possible.
I’m not saying there are not potential upsides of speaking out—including to the mental and emotional well-being of folks who want to speak out and have been advised to stay quiet. I’m just stating my view that those upsides are outweighed by the potential downsides, not only to the speaker, but to folks they might speak about and the process in general.
Re the question about how organizations could get involved, I don’t pretend to know the specifics here and wouldn’t comment if I thought I did, but on a general level Jason covers this in his response.
I appreciate your take here, but would also take bets at pretty large odds that if we were to ask the relevant creditors and defendants that they would prefer people to speak openly here, and that this guess of yours is inaccurate.
I think I just don’t understand the basic argument by which information here will harm people, especially if that information provides accurate evidence about actual wrongdoing that happened, or provides substantial evidence about who might be relevant witnesses to the case, by modeling the social dynamics around FTX.
The prior in favor of “accurate information helps people come to more accurate beliefs” just seems so much stronger here than the relatively vague and abstract arguments you are providing.
The prior in favor of “accurate information helps people come to more accurate beliefs” just seems so much stronger here than the relatively vague and abstract arguments you are providing
A simple model, which is roughly what I interpret legal experts to mean when they say that the US justice system is intentionally designed as adversarial, is something like: the probability that a judge finds you guilty (pj) is the product of the true probability that you are guilty (pt), the bias on evidence introduced by the prosecutor (bp), and the bias on evidence introduced by the defender (bd):[1]
pj=ptbpbd
We observe that pj=pt↔bp=b−1d i.e. the optimal truth finding strategy is when both sides are equally biased in their own favor. And importantly to your point, one side being unbiased results in the judge making a worse decision (assuming the other side is biased).
Furthermore, the equilibrium of this game is when sides are maximally biased in their own favor (since otherwise the more biased side would disproportionately win). Knowing this, the US legal system encourages both sides to be maximally biased, since this results in the most accurate judgments.
I would be interested to hear from others if this seems accurate, as it’s not something I know a lot about.
FWIW, I’d happily take the other side of a bet from you here, if one could construct a wager that would settle this. But I don’t think that’s possible, which I reckon is part of the problem.
And while I’ll confess to being a little miffed at having my own prior (updated over 15+ years directly observing analogous circumstances) downgraded to a ”guess” in your comment, while your own remains on its linguistic perch, I don’t think our continuing to go around on this will be useful. I’ll propose we “settle” it by my buying you a beer (or a cup of coffee, if you prefer) the next time we’re in the same city (and I’ll draw my home circle out to include NYC, if you happen to come through), and we can spend the time discussing the many things I’d wager we agree on.
For the non-lawyers, I’d add that two of the factors you may not be thinking about are (A) the cost of the attorney gathering enough information to make even a semi-reliable estimate of expected costs; and (B) the risk of client error from various sources.
As a general matter: Client officials are not lawyers and may not understand what information is relevant to bring to the lawyer, even with some guidance they will need to err on the side of overproduction. So the lawyer often needs to review a lot of irrelevant information to better ascertain the actual risks involved, which raises costs.
Second, client officials have their own motivations which may run at cross purposes to the lawyer making an accurate risk assessment. Let’s say—hypothetically—that an employee did something that is in retrospect really inadvisible and that exposed the organization (and possibly themselves) to significant liability. That the attorney represents the corporation and not the employee, and should be explaining that to employees if there is any risk of a conflict of interest between the employee and the corporation. How likely is it that the employee is going to ’fess up with minimal prompting?
I consider your attempt at a quantified expected cost analysis a helping hand, not pushback, and I appreciate it.
Accepting it as a data point, a few quick points in response:
Your comment only addresses the self-interest angle, which was a relatively small part of my post. It (understandably) ignores the impacts on others and the systemic impacts that I tried to highlight, which I don’t think can be disentangled from the self-interest analysis so easily. I’m not sure those additional impacts are amenable to quantified expectation analysis (though I’d be happy to be proven wrong on that), but we shouldn’t just ignore them.
I think your numbers are low at the outset, but I don’t think any tweaking I’d do would cause us to be off by an OOM. That said, I think you’ve established a floor, and one that only applies to a witness with no potential liability. Accepting your numbers for the sake of discussion, the time estimates sit at the bottom of towering error bars. And that’s assuming we’re talking about an individual and not an organization that might have orders of magnitude more documents to review than an individual would, attorney-client privilege and other concerns that complicate things greatly and require a great deal more attorney time, and potentially many individuals involved as witnesses, with all the associated costs for each one.
The expectation analysis also (again, understandably) only addresses time and money and does not address mental and emotional impacts. Such things are obviously difficult to quantify, but they are worth taking seriously. The legal system fails to address these issues at basically every turn, and causes a great deal of suffering as a result.
On the point about lawyers being overly conservative, I think from a 10,000-foot view assessing emergent trends across all legal advice given in all situations, I agree with this. But when you dig into individual instances of legal advice, the idiosyncrasies of each situation make applying a heuristic based on emergent macro-trends difficult to justify. I recognize that’s not a solution to what I agree with you is a problem, but I think it’s an important part of the problem to recognize in the context of this discussion.
Appreciate the thoughtful response.
Thank you! I am glad.
Some further thoughts in response:
I do admit to failing to understand your case that the impact on others and the systemic impacts are expected to be negative, not positive.
It seems that our prior should be strongly that making the courts have more relevant information will overall cause them to make better decisions, and while you list some plausible scenarios of negative impact, the scenario of “someone says something true publicly that then gets used in the lawsuit to help identify the circumstances and details of the crimes that appear to have been committed in a way that both makes justice more likely to be achieved and saves everyone time” seems by far the more likely outcome.
My guess is that if you had a class action lawsuit by the FTX credits or people who deposited their money into FTX that they would pretty strongly prefer more people go give more information on FTX publicly, since that will likely make their job easier, not harder, and as such I think the sign of the secondary effects here points strongly in a positive, not negative, direction.
I agree that if you have potential liability the costs might be higher, though it’s a bit unclear what our moral imperative in that case should be (like, depends on whether your liability here is the result of kind of crazy laws or not).
I think there are definitely some individuals who have more at stake here, and where it probably makes sense to be more quiet, though I would be quite surprised if this includes most of the EA leadership.
I feel a bit confused about how much organizations could get involved in this situation, and would appreciate more datapoints on what it means for an organization to get involved in this at a level higher than individual witnesses. I understand the obligations that individuals are under if they are called in for testimony, but don’t understand the obligations that organizations could be under in a case like this.
I agree that there are substantial costs here, but I also want to talk about the symmetric costs on the other side that strike me as substantially greater. My sense is most people will suffer a good amount more stress from trying to be quiet about this topic for many years, and will incur much greater costs from there being a lot of latent concern and anxiety for many years as people stay quiet, and that the mental and emotional impacts of that will be much greater than the impact of being involved in the proceedings itself, at least in the aggregate (I do think some individuals will have a pretty bad time with the court system, but I think approximately everyone in EA will have a pretty bad time if discussion around this topic stays guarded for many years).
Criticism of the US model of a strongly “adversarial” justice system is definitely valid; it wastes a lot of resources on inefficiently resolving certain sorts of disputes. However, the bankruptcy case is in a US federal court, and at least most of the key players are within the jurisdiction of said court. And I don’t think you usually get to a fair, equitable, or efficient outcome by not asserting your rights and interests when the other side is going out with guns blazing. The system tends to give both sides some good cards and some cards that suck; getting an outcome that is fair to all involved generally involves giving up your good cards in exchange for the other side giving up theirs too.
There is a parallel system of alternative dispute resolution (ADR) like mediation which tends to be much more efficient and more likely to produce outcomes everyone can live with. But it requires give and take by both sides, and right now the debtors are not in a position to engage with it. They have much more pressing issues to deal with in the next few months, like trying to track down $10B in missing crypto before it ends up untraceable or outside the practical control of a US court.
In my view, many organizations do have a moral obligation to return some of the funds—and an ADR process is the best way to do that. It is reasonable for the organizations to ask for dismissal of any claimed liabilities they should not morally have to bear in exchange for that.
Most litigation of note will be against organizations—like Willie Sutton didn’t actually say about banks, because that’s where the money is. To me, the likely story is that corporate counsel is advising organizations about the desirability of directing their employees to stay mum to protect the organization’s legal interests. In fact, organizational counsel does not represent the employees (which is a good thing to remember if you ever are involved with a lawyer at work!) That directive may incidentally benefit the employees and directors, though.
It is really difficult to give specific examples of the corporate/individual interplay because we don’t know what the identified legal risks are. But two general principles: first, an employer is generally liable for an employee’s actions in the scope of the employee’s employment. What “in the scope” means is pretty fact-specific. As an extreme example, we have the Department of Justice arguing at the moment that denying allegations of sexual misconduct from decades ago is in the scope of employment of the (former) U.S. president.
Second, corporations lack minds and cannot “know” anything other than through affiliated people. So for instance, if the CEO of Organization X comes on here and writes that he knew A, B, and C (at a time they were CEO), that will probably establish that Organization X knew A, B, and C. That might or might not be the case if a more junior employee said that they knew A, B, and C but higher-ups did not know. All that is to say that the speech of affiliated individuals tends to have effects on the legal interests of the organization too.
Unfortunately, because none of us know what is being discussed by the people involved, we are limited to speculation about what might be going on. Speculation is a poor substitute for information, but it can’t leak knowledge (that the speculator does not have) or be attributed to a person or organization (with whom the speculator has no affiliation). I know that is not very satisfying.
Sorry for the delay in responding here, and apologies in advance for keeping this one short.
Your position appears to assume that speaking outside the court process after the fact is likely to add accurate information to the public record and help everyone get to the truth. One of the main thrusts of my OP is that this is not the case. Instead, speaking outside the process after the fact is more likely to create confusion instead of clarity, along with all the other negative effects I walk through. I’m speaking strictly from my experience and in the abstract here, but I think that’s where we disagree. Even information provided carefully, with counsel, under the controlled circumstances of the judicial process can be problematic, but it at least has the benefit of being relatively structured and under oath. It’s much more likely to help everyone (including class action attorneys) get as close to the truth as possible.
I’m not saying there are not potential upsides of speaking out—including to the mental and emotional well-being of folks who want to speak out and have been advised to stay quiet. I’m just stating my view that those upsides are outweighed by the potential downsides, not only to the speaker, but to folks they might speak about and the process in general.
Re the question about how organizations could get involved, I don’t pretend to know the specifics here and wouldn’t comment if I thought I did, but on a general level Jason covers this in his response.
I appreciate your take here, but would also take bets at pretty large odds that if we were to ask the relevant creditors and defendants that they would prefer people to speak openly here, and that this guess of yours is inaccurate.
I think I just don’t understand the basic argument by which information here will harm people, especially if that information provides accurate evidence about actual wrongdoing that happened, or provides substantial evidence about who might be relevant witnesses to the case, by modeling the social dynamics around FTX.
The prior in favor of “accurate information helps people come to more accurate beliefs” just seems so much stronger here than the relatively vague and abstract arguments you are providing.
A simple model, which is roughly what I interpret legal experts to mean when they say that the US justice system is intentionally designed as adversarial, is something like: the probability that a judge finds you guilty (pj) is the product of the true probability that you are guilty (pt), the bias on evidence introduced by the prosecutor (bp), and the bias on evidence introduced by the defender (bd):[1]
pj=ptbpbd
We observe that pj=pt↔bp=b−1d i.e. the optimal truth finding strategy is when both sides are equally biased in their own favor. And importantly to your point, one side being unbiased results in the judge making a worse decision (assuming the other side is biased).
Furthermore, the equilibrium of this game is when sides are maximally biased in their own favor (since otherwise the more biased side would disproportionately win). Knowing this, the US legal system encourages both sides to be maximally biased, since this results in the most accurate judgments.
I would be interested to hear from others if this seems accurate, as it’s not something I know a lot about.
After writing this I realized these should be odds ratios, not probabilities, but hopefully you get the point.
FWIW, I’d happily take the other side of a bet from you here, if one could construct a wager that would settle this. But I don’t think that’s possible, which I reckon is part of the problem.
And while I’ll confess to being a little miffed at having my own prior (updated over 15+ years directly observing analogous circumstances) downgraded to a ”guess” in your comment, while your own remains on its linguistic perch, I don’t think our continuing to go around on this will be useful. I’ll propose we “settle” it by my buying you a beer (or a cup of coffee, if you prefer) the next time we’re in the same city (and I’ll draw my home circle out to include NYC, if you happen to come through), and we can spend the time discussing the many things I’d wager we agree on.
For the non-lawyers, I’d add that two of the factors you may not be thinking about are (A) the cost of the attorney gathering enough information to make even a semi-reliable estimate of expected costs; and (B) the risk of client error from various sources.
As a general matter: Client officials are not lawyers and may not understand what information is relevant to bring to the lawyer, even with some guidance they will need to err on the side of overproduction. So the lawyer often needs to review a lot of irrelevant information to better ascertain the actual risks involved, which raises costs.
Second, client officials have their own motivations which may run at cross purposes to the lawyer making an accurate risk assessment. Let’s say—hypothetically—that an employee did something that is in retrospect really inadvisible and that exposed the organization (and possibly themselves) to significant liability. That the attorney represents the corporation and not the employee, and should be explaining that to employees if there is any risk of a conflict of interest between the employee and the corporation. How likely is it that the employee is going to ’fess up with minimal prompting?