Thursday, January 18, 2018
Opinion

White-collar criminals' code: 'It's not my fault'

I mediated a case some years ago between a small general contractor and a carpenter. The carpenter had done some work for the contractor, and the contractor didn't pay. Then the contractor went to prison for arson. Once the contractor was out of prison and back in business, the carpenter filed suit to recover the money.

I met privately with the contractor and went over the facts. Did you hire the carpenter? Yes. Did you agree to pay him such and such an amount? Yes. Did he do the work? Yes. Did you pay him? No.

I asked why not, and I remember exactly what he said:

"Did I tell you I was a nice guy? I don't remember saying that."

This was not the answer I expected. I expected to hear about his unjust and unfortunate incarceration and resultant financial difficulties and personal challenges. I expected him to duck and dodge and whine and wheedle and make excuses the way most people do.

A friend of mine who is a federal judge and another who is a retired county prosecutor suggest I shouldn't have been so surprised. "Give me an armed robber or a dope dealer any day," they say. "Of course they try to get the best deal they can, but they know what they did. They took a chance. And when they get caught, they stand up and take the punishment. It's a cost of doing business. The white-collar guys are totally different. Nothing is ever their fault. All they do is whine!"

I hear that kind of whining over and over in my mediation practice. Employees who were fired for failing to come to work tell me, "It was really retaliation for my outspoken defense of my constitutional rights." Managers accused of sexually harassing one subordinate after another say, "It's a conspiracy cooked up out of nothing by people who are out to destroy my career for no reason."

I hear it from my students. They didn't get the wrong answer; the question was ambiguous. They didn't get a lousy score; the curve was too high.

We hear it from our "leadership." Newt Gingrich didn't have an affair because he saw something he wanted and he thought he could grab some without getting caught. Instead:

"There's no question at times of my life, partially driven by how passionately I felt about this country, that I worked far too hard and things happened in my life that were not appropriate."

It's worthwhile to pause a moment here and marvel at the chutzpah it takes to produce a statement like that.

It wasn't Dick Fuld's rapaciousness that drove Lehman Bros. off a cliff. Not at all. According to him:

"Lehman was forced into bankruptcy not because it neglected to act responsibly or seek solutions to the crisis but because of a decision, based on flawed information, not to provide Lehman with the support given to each of its competitors and other nonfinancial firms in the ensuing days."

Part of the explanation for this is ordinary human psychology. All of us spin the narrative of our lives so we come out looking good. We take credit for our successes and blame others for our failures. It's part of how we're wired.

Still, wouldn't it be refreshing if, say, Angelo Mozilo of Countrywide Financial could raise himself up to the same level of psychological insight and basic honesty as your average deadbeat arsonist?

"Look," he could say, "I'm not a nice guy, all right? I don't recognize any value other than my own, immediate financial reward. I saw an opportunity to make a pile of money selling toxic mortgages, and I took it. What do you expect?"

Barry Goldman is an arbitrator and mediator, and the author of "The Science of Settlement: Ideas for Negotiators."

© 2012 Los Angeles Times

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