Tyler Whitmer

498Joined Sep 2022

Comments
9

Does it make sense to have a quick chat about this in realtime? I’d be open to that and think it would be more productive. 

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. 

If the point of this is to try to quantify things like lawyer time, witness time, etc., in large matters like this, that's going to be a REALLY heavy lift that the above just scratches the surface of and would require pulling together info from a huge number of sources, including public dockets that are daunting both in size and difficulty to work with. Not to knock the effort so far. It's just a huge lift that would take hours and hours and require a lot of knowledge about how US court systems work to get right. 

If one were to venture such a thing, a good place to start (but by no means a comprehensive source) would be fee applications in bankruptcy courts. That said, I'd advise against it. Feels like a lot of work that is very unlikely to move the needle in this discussion. 

I'm not sure I understand this comment completely, but I think I disagree with it. Speaking in the abstract because I don't want to suggest I know anything about any specifics here, I think the best way to avoid legal risk (including but not limited to liability) based on pre-blow-up actions or statements in any situation like this is to stay silent after the fact and only say what is absolutely necessary through the formal legal process. 

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 agree with the last sentence of this comment very much. 

But I suspect there are ways to work around this in most instances and to do informed, forward-looking work to improve the ability of the community to avoid something like this happening in the future. I want to think about this a lot more, and I hope others will be doing the same, but one way to do this would be to work with the consensus factual record that is developed, both in the court record and the media (with the latter often getting the former wrong, which is a whole other source of confusion and complication). It won't necessarily cover every nuance, but it will help smart folks do good work without asking anyone potentially involved to make statements outside of the consensus factual record. It's not perfect, but it's not nothing. 

To be clear, this is VERY off-the-cuff musing, not intended to be a comprehensive response to a very serious problem. This is a topic that I think is super critical to do some hard work on in the near term.

Very off-the-cuff here, so forgive any sloppiness. 2 and 3 seem like empirical questions about which I don't have enough information to even hazard a guess. I'd at best be stoking a similar kind of confusion my original post attempts to warn about. 

Re 1, if we're talking in the abstract about criminal or civil liability, then I think the answer is probably yes (with potential exceptions for situations where after-the-fact actions might give rise to liability for things like perjury and witness tampering, etc.). 

But if we're talking about cost in time, treasure and mental well-being associated with being a witness, or the knock-on effects for others and the system more generally, I think the answer is a strong no. Loose talk after a dispute has arisen can easily take a near-0% chance of someone being significantly involved (looking exclusively at pre-dispute facts) and make it a near certainty. And this would not necessarily be just for the individual or organization doing the talking. A simple but hopefully clear example would be where a central figure in the pre-dispute facts speaks post-dispute and identifies someone else as being significantly involved. The identified person would suddenly be on everyone's radar even if they were on nobody's radar before the statement, and that would be true even they weren't actually involved (i.e., the post-dispute statement was false), and even if the false statement was an innocent mistake (a few examples of which I try to outline in the post--e.g., confusing post-dispute involvement with pre-dispute involvement, etc.). 

Hope this is useful.

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. 

This is a great response. I wonder how many young lawyers that might be wrestling with this kind of thing realize how little influence they have over what they work on as junior associates (or even junior partners in many cases) at most big law firms (at least in the US). In other words, the decision to go work for a large law firm is often itself the decision to represent morally compromised clients. Not always, but often.