Monday, August 2, 2010

The Crap You Don't Know.

I first discovered Bill James back in the early 1980s when a commercial publisher began putting out his annual Baseball Abstracts.  He may not have been the first of the new breed of folks doing sophisticated statistical analysis of baseball, but he was the key popularizer.  His basic idea, as he explained it over and over again, was that there were all kinds of things we just believed about the game, the received wisdom, without ever actually bothering to figure out if they were true.  He wanted to figure out if they were.
So he'd play with numbers in new ways, work out the possibilities, and then write clever, smart, easy to understand essays relating the things he learned through the numbers to the players and the game on the field.
Bill James begat Moneyball and Billy Beane.
Then the Boston Red Sox hired him and beat the curse.
Thing is, James understood that while thinking about numbers could tell you all sorts of things about the game you didn't know, the game was played by actual people, not statisticians.  Numbers, that is, could only tell you so much.  And frankly, you don't want them to tell you more.
Forget how this looks.  It's not a post about baseball or even Bill James.  It's a post about criminal law.  And about how to think.
Imagine yourself a criminal defense lawyer with a new client who is charged with, say, murder.  (If you are a criminal defense lawyer, this shouldn't be a difficult exercise; if you're not, do the mental exercise without reference to television or the movies, please.)  Police stomped around the scene while securing it.  The real-life CSI folks (fallible and sometimes dishonest, unlike the TV version) have done and will continue to do their thing, gathering evidence and subjecting it to lots of testing.  Detectives have gone door to door in the neighborhood looking for witnesses.  The state and FBI crime labs are geared up to do sophisticated and expensive testing.  The prosecutor has a whole office staffed with investigators and researchers and who knows what all.  The newspaper has run your client's picture above the fold every day for a week.
Maybe you have the money for an investigator.  Maybe you can raise the money to get a lab test or two run if you can convince the judge to order the state to turn over the evidence for testing by your people. Maybe you've got a law student helping you do some research.
The evidence the state gathered isn't exactly compelling, but it's more than enough.  Footprints, tire tracks, ballistics.  Your client made a statement that isn't quite a confession but can be twisted to sound like one.  The eyewitness described someone who doesn't look much like your client, but when the cops spread six pictures in front of her, she pointed to your guy, the only one with sideburns.
And your client has that felony record and all those tattoos.  And he's hopelessly inarticulate.  No way you want to see him on the witness stand.
But that's your case to deal with.
The jurors are told that your client has a presumption of innocence.  They're told that before they can find him guilty, they must believe each element of the offense beyond a reasonable doubt.
Pish tosh.
They start out believing he's guilty.  Where there's smoke there's fire.  If they weren't guilty, they wouldn't be suspects.  Besides, if the prosecutor and the cops didn't think he was guilty, they wouldn't have charged him and wouldn't be trying the case  You're just some hired gun.
This isn't a level playing field.
We're criminal defense lawyers.  We go to seminars where other lawyers teach "The Secrets of Effective Cross-Examination" or "How To Talk to a Jury" or "Your Opening Statement Can Win Your Case" or "Storytelling for Trial Lawyers" or "Ten Tips to Winning at Trial."
But the folks who teach those things, they all have clients doing decades in the slammer.
Most of the time, our clients did, in fact, do something at least vaguely like what they're charged with doing.  Most of the time, the state's evidence is sufficient.  Most All of the time, the decks are stacked against us.
We have to be smarter, have to work harder.  But even then the jury will probably find our clients guilty.
Which is where Bill James comes in.  He was interviewed by Geoff Baker of the Seattle Times for the Mariners Blog.
You don't learn by studying the stuff you know. You learn by studying the stuff that you don't know. So, if you divide the world into (crap) that you know and (crap) that you don't know, and you study the stuff that you know, then you're not going to learn very much. All of the progress comes from studying the stuff that you don't know. So, that's really what's interesting. And that's where most of your focus should be. Studying stuff that you can't agree about.
It's not so much thinking outside the box.  It's turning the box upside down and looking at it from a different angle.
Studying the crap you don't know.

h/t  Rob Neyer


  1. Great post, Jeff. There's the inclination to think we learn something by adopting a position that seems right and then defending it against all comers, seeing how it stands up under the rigors of criticism. That's kind of how trials work. But at the end of the trial it's unlikely we're going to be persuaded that the other side is right and we're wrong -- i.e., to have learned much of anything new. But maybe if we spend less time studying what we know and more time studying what we don't, we'll learn something. Thanks.

  2. I rarely comment just to say great post, but this one calls for it.