The Honorable Irving Younger, a former judge and law professor whose name was commonly known to lawyers a generation or two ago, gave a famous lecture entitled "In Praise of Simplicity." This lecture focused, as Professor Younger put it, on an aspect of intellectual virtue "in want of a champion among lawyers and judges and law professors." Towards the end of the lecture, Professor Younger references Ockham's Razor: "Given two ways of saying or doing something, one simpler than the other, always prefer the simpler."
To some degree, the Sam Bankman-Fried white collar criminal trial highlights this point. Simply stated, the former founder of FTX, a cryptocurrency exchange, and Alameida Research, a hedgefund, is being prosecuted for taking money from FTX investors to cover shortfalls in Alameida Research. Even in a case like this involving allegations of corporate and financial fraud with a long series of transactions and events involving a new and complex financial product, simplicity is key. In a recent article about the trial, the Washington Post quoted one former federal prosecutor who observed the prosecution succeeding in avoiding any of the complexities of crypto currencies and focusing on three simple questions: “Did he take the money? Did he lie about it? Did he know he was lying about it?” Simplicity.
On the other hand, according to media accounts, Bankman-Fried's criminal defense team is pursuing complexity. His attorneys have been chastised by the Judge for having witnesses repeat during cross examination a lot of the testimony they already gave during direct examination. There is some suggestion that the repetition is tactical, but whether it is good or bad tactics remains to be seen, particularly where it has the judge angry.
His attorneys also committed themselves during their opening statement to showing that Bankman-Fried was not savvy enough to understand the need to safeguard against risk as his business grew rapidly. Indeed, Bankman-Fried portrayed himself in his own testimony (rare for a criminal defendant) as an overwhelmed CEO who failed to address various business issues. Consider how complicated it will be to explain away all the points that cut against this defense, the lack of simplicity this defense will entail, and how dangerously close to falling prey to Ockham's Razor Bankman-Fried will come. For example, the prosecution's cross-examination highlighted how Bankman-Fried's public persona contradicts the hapless founder narrative, and indeed, before his present troubles Bankman-Fried was a darling of the cryptocurrency industry. Whatever the strategic judgments of the defense team and their client in allowing him to testify, the result is a difficult task: they have to convince the jury to accept that a crypto-wiz-kid, who claims he was wrongfully viewed as a hotshot in public but was a mess in private, was just mistaken or negligent when he told investors and customers that everything was fine.
When I tried cases for the City, we spent a lot of time considering the words we used to describe complex constitutional and scientific concepts. Simplicity was key. More recently, I have had debates with colleagues (none at Fasulo, Giordano & Di Maggio) about whether a jury would understand the bonds and swaps at issue in the case. My take was that it is the responsibility of the trial attorney to help the jury understand how an investment product, security, bond, crypto coin, or swap works by keeping it simple and not getting lost in unnecessary detail. The Bankman-Fried trial may give us an even better starting point for simplicity: does the jury need to understand these concepts to do its job in the first place?