Unknowns, Risk, and the vigilante of the A4155
The topic of this blog is, what you see is NOT always all there is.
I take this unashamedly from the brilliant Daniel Kahneman, Nobel Prize winner for economics, who identifies that one of our cognitive weaknesses is to assume far too quickly that what we know is all there is to know. There are often unknowns. And the most dangerous unknowns are the unknown unknowns.
Donald Rumsfeld mused on this quite famously when he was guiding the USA through one of the conflicts in the Middle East. He said, that there were things that the administration knew that they didn’t know. But there were also other things that they don’t know that they didn’t know. And it’s this last one which is the challenge for humanity.
And that concurs entirely with Daniel Kahneman’s observations that we are cognitively inclined to get on and make decisions before reviewing whether we’ve uncovered all the unknowns.
Why do we rush our decisions, and not search out the unknowns? Well, as humans, we rarely used to need this skill. Take an example. You are a hunter gatherer, early in our history. You were in group that found a new type of bush. An unknown fruit is hanging from it. Someone tries the fruit. They get sick. So no one eats the fruit again. Easy. No need to worry about unknown facts.
This sort of history has made us weak at finding out the unknowns.
So to bring this to life a little, I’m going tell a story about when I ended up as a defendant in court. And the trial had a bombshell revelation (i.e. something previously ‘unknown’).
This story is also of great relevance for lawyers, on the topic of litigation risk. Good lawyers negotiate settlements to protect clients from the risk of a discovery of unwelcome unknowns in the litigation. Trial lawyers are there to unearth an unknown or 2 in the trial and change the momentum of a case.
And so it was with me. I was 18 years old and one day, I was driving my car with a friend as a passenger. We came across, (on a quiet road, on a Sunday morning), a driver who was going slowly. So slowly in fact, I thought he had a mechanical defect. He seemed to be deliberately letting me go past.
And I did. And I didn’t give the manoeuvre a second thought.
A few miles down the road, he was still the car behind and we arrived at some traffic lights and the driver of the car I’d overtaken got out. He came to me, knocked on the window. I dutifully opened it thinking he had some useful information for me. But rather he just started shouting at me rather incoherently about what a reckless terror I was and I should be taken off the roads.
Well, the lights turned green and I shrugged and just drove away wondering what on earth had possessed him to berate me in this way.
You might imagine my shock and surprise when a few days later the police knock on the door and informed me that man was bringing a private prosecution against me. The police had been entirely disinterested in his complaint about me, so he was going to hire lawyers and prosecute me himself.
In the trial, it was a simple word against a word. I maintained there was nothing at all wrong with the manoeuvre. He was making out it was astonishingly dangerous and that I should be removed from the roads.
His lawyer had a very difficult question for me which was, why would he make it up? Why would he go to the expense and bother of bringing me to court unless, I had done something to warrant it?
And to be honest, I didn’t really have an answer. I couldn’t imagine why he would do such a thing.
But then, the most extraordinary thing happened. He said in the witness box that I was not the driver of the car. He said that my friend Johnny was the driver, and I was actually the passenger. He alleged that we’d swapped places for the trial, and we were deceiving the court.
This was a massive escalation, and there were mutterings about perjury and perverting the course of justice.
Luckily though, I thought of how I could prove him wrong. At that time, I had an earring. Forgive me, it was the 1980s. And Johnny, my friend, did not. And the man had seen us both at the traffic lights. He said he’d seen us well enough to know which of us was the driver and which was the passenger.
So I asked him, “The driver, did he have an earring?” “Oh, yes,” he said. “I definitely remember that. Hideous thing it was.”
I proudly announced that the only one of us who had a pierced ear was ME. Johnny didn’t. So I WAS the driver.
This turned the tables. I asked the question, “Why on earth would you make up the allegation that I was not the driver?”
And under the pressure, he cracked and he revealed that actually, I was the fourth person he had prosecuted on the same road, and he had been motivated by the fact his son had been hit on that road, the victim of a fatal hit and run. The perpetrator had never been found.
So clearly, he was acting as the vigilante of the A4155 from Henley to Wallingford and hoping to find a driver reckless enough to have been a possible suspect in his son’s death. That piece of information, of course, changed everything, but it did not emerge until the very last minute. And might very well have never emerged at all.
So to all leaders and people in business I say watch out for the unknown unknowns, and this is why questioning skills, knowing the right questions to ask and keeping listening and listening deeply is so important to make sure that you don’t rush decisions which are important when you may not have all the information that you need.
And for lawyers, I say beware the risk of going to trial. Interview your clients and witnesses well ahead of time and always persuade clients to take settlements even if they’re not quite as good as they would like. The risks at trial are rarely worth it. There’s nothing worse than taking a case to trial and seeing it unravel by the revelation of something hitherto unknown.