advice from a fake consultant

out-of-the-box thinking about politics, economics, and more…

On Avoiding Blame, Part One, Or, Hear No Evil, See No Evil, Drill No Evil. September 2, 2010

I am one of those people who will actually watch those boring, boring, hearings on C-SPAN that most of us flip right on past while watching TV, and this past week I’ve been watching one of the longer events the channel broadcasts…but it’s been far from boring.

The Coast Guard and what used to be the MMS were in Houston looking into what caused the Gulf oil spill and they’re taking testimony from representatives of the involved parties…and let me tell you, this is more than just an accident inquiry—it’s also a warm-up for the lawsuits that are surely going to follow.

We’ve had dozens of trial attorneys basically conducting a deposition process, witnesses who can teach a master course in “plausible unawareability”©, BP employees who have taken the Fifth and refused to testify at all, and, overseeing the entire process, a retired Federal District Court Judge and a Coast Guard Captain who might very well be on the way to trading his eagles for stars one day soon.

Do you really believe all those “we’ll make it right” BP commercials?
If you watch this hearing, that impression may well change.

When I talk on the stage, people often have the impression that I make up things as I go along. That isn’t true. I know a lot of things I want to say, I’m just not sure exactly when I’ll say them.

–From Lenny Bruce’s book How to Talk Dirty and Influence People

So if we’re going to keep this story under any kind of control, we’ll have to compress a lot of detail into some rather broad and sweeping statements, otherwise we’ll be at 3000 words before we know it.

Here’s the scene: a nondescript conference room in Houston is set with a table for the several Board members, who are drawn from across the Federal Government, including the old and exceptionally dysfunctional MMS (the Minerals Management Service), which has sort of morphed into the brand-new Bureau of Ocean Energy Management, Regulation, and Enforcement (the BOEM) and the Coast Guard.

In front of them is another table for the witness and their attorney, and right behind them are three very, very, long tables that are set up for the possibly four dozen attorneys that represent all the “parties of interest” who are involved in the hearing and require a bit of desk space (among that group are lawyers for BP, Transocean, Halliburton, certain individuals involved in the incident, and the Republic of the Marshall Islands, where the now sunken vessel was “flagged”; that Nation is conducting their own investigation). Behind that are rows of “gallery seats” for the interested public.

(You can see the entire thing by visiting the C-SPAN site…but do grab a beverage and some snacks first.)

The way this all works is that the Board begins the process of eliciting information by questioning the witness themselves. Next up is the attorney for the Marshall Islands; the witnesses’ attorney and employer’s attorney then “cross examine”, and then every other lawyer in the room gets a crack at the witness, should they so desire.

Wrangling” all of this from his Co-Chair seat is retired Federal Judge Wayne Andersen; the Coast Guard has a “good cop/bad cop” team on the Board (the Board’s Recorder, Lieutenant Robert Butts, and Co-Chair Captain Hung Nguyen, respectively). Mssrs. David Dykes (the other co-chair) and Jason Matthews, who are representing BOEM on the Board, are among the technical and regulatory experts who are also asking some very pointed questions.

Since many witnesses also represent Halliburton, BP, and Transocean, there is very much a “trial of the century” atmosphere in the air…and everyone is trying to protect their own interests at the expense of the others.

As is common in these situations, the witnesses are busily playing “duck and cover”…and I have been privileged to watch what has essentially been the construction of the “pyramid of denial” by a team of master craftsmen.

Now these folks don’t deny like you or I would deny, instead, they have far more sophisticated techniques of obfuscation that they employ.

The first method: imagine a group of people, sitting in a circle, each pointing a finger at the person to their left.

Later, we saw a new approach: imagine a group of people, sitting in a circle, pointing both fingers at the people sitting to either side of themselves.

Even later, it became a three-dimensional game, as some of those in the circle began pointing either upward or downward…and the most sophisticated of all had personal attorneys available at the witness table to do some of that pointing for them.

Another effective tactic is to never be the person actually in charge of whatever it is someone wants to know about…and if your company operates worldwide, there are lots of places to move from, and to, along with lots of potential “shifting responsibilities”; sure enough, there are witnesses here who seem to be “Johnny-not-on-the-spot” over and over and over again.

The Fifth Amendment’s protection against self-incrimination can also provide a shield that’ll keep you out of the witness chair; that’s why BP engineers Mark Hafle and Brian Morel and Deepwater Horizon’s BP day shift manager Robert Kaluza have not given testimony to the Board.

Now this is not something your normal “mom and pop” denier can typically pull off, and that’s why it appears that at least some of these companies require an entire corps of specialists who don’t actually know anything at all, just so they can appear before courts and investigative boards such as this one, where they either “don’t recall”, or they spend an astonishing amount of time not looking into this “casualty”, as it’s described by those involved in the investigation.

One example that leaps to mind is a certain BP executive who, even though he’s in charge of the “drilling and completions” operations on various BP owned and leased oil rigs in the Gulf of Mexico, reports he has never read any information regarding this accident that BP might have developed since the April 20th event, and has never spoken to a BP investigator to enquire as to whether any “lessons learned” exist that he can apply to the operations he oversees.

There’s so much more to talk about—and apparently we’ll need a Part Two to make that happen—but for today what we need to know is that there has been another week of hearings, that if you watch those hearings you’ll have seen basically a 1/12th scale model of the lawsuits that are already piling up in Louisiana, Texas, and Federal Courts, and that if you watch certain portions of the hearings you can see bombast, tough questions…and the kind of elbow bending and finger pointing that can only lead to severe arthritis later on in life.

Next time, we’ll be talking about “command and control” on the Deepwater Horizon (did you know an oil rig is actually a ship?), about what actually happens down a well, and about why things like “centralizers” and “channeling” matter—a lot.

In the meantime, if you want to get your homework on, all the hearings, in more or less backwards order, can, as we said before, be found at the C-SPAN site…which is why we appreciate them very much.

So either get deeply buried in what will become the legal soap opera of the decade…or run away, quickly, depending on your needs…and when we meet again, we’ll have quite a bit more story to tell.

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