Ep.29: Putting Compliance on Trial?
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About this episode. In this episode of The Better Way, Zach shares reflections from an unusual professional crossover: serving on a criminal jury in a high‑stakes, multi‑week trial. What he experienced in the courtroom and the jury room—confusion caused by complexity, the absence of a coherent story, opaque instructions written in legalese, and the emotional weight of being questioned—sparked a series of insights that directly mirror some of compliance’s biggest challenges. From training that ignores people’s time, to investigations that underestimate the stress of being interviewed, the jury experience became a case study in how easily good intentions can be undermined by poor design.
Zach and Hui explore what this experience teaches compliance professionals about prioritizing clarity over volume, outcomes over outputs, and listening over simply encouraging people to speak up. They also examine the uncomfortable question of evidence: could compliance leaders credibly testify to a “reasonable degree of compliance certainty,” that their programs actually work? The conversation ultimately reinforces a core truth—compliance, like justice, is not just about rules; it’s about people, behavior, and designing systems that work in the real world.
Who? Zach Coseglia + Hui Chen, CDE Advisors
Full Transcript:
ZACH: Welcome back to The Better Way? Podcast brought to you by CDE advisors. Culture. Data. Ethics. This is a curiosity podcast for those who ask, “There has to be a better way, right? There just has to be.” I'm Zach Coseglia and I am joined as always by Hui Chen. Hi, Hui.
HUI: Hi, Zach. Hi, everyone.
ZACH: Welcome back to The Better Way. So, it is just us today, but we have kind of what I think is a fun topic because I recently had the opportunity, maybe the pleasure, to serve on a criminal jury. And we're going to talk a little bit about that experience. And I'm going to share some of the inspirations and reflections on the world of compliance that I experienced while sitting on this jury.
HUI: Yes, this is actually quite an unusual type of experience. At least people presume that lawyers are typically not picked for jury. At least this is what we all thought. So, when Zach got the jury notice and said he was going, I said, oh, you're just going to sit there for three days and not be picked and come back. I was shocked that he was picked. So, let's hear what your experience was like and how it might shed lights on better ways in the world of ethics and compliance.
ZACH: Indeed. Well, you know, before we even get there, this idea that it's rare, unusual, or surprising that a lawyer would be picked for the jury was certainly my perception, but we wound up having three lawyers on this jury.
HUI: Unreal.
ZACH: Unreal, unreal. And what was really interesting to me actually was I didn't know all of this, but I think there are still some states that actually as a matter of law, like restrict lawyers from sitting on juries. And in Massachusetts, that was the case until not so long ago. In fact, there were all of these professions that were restricted from sitting on juries. And finally, they realized that they didn't have like enough people or a diverse enough pool . . .
HUI: Well, there's that.
ZACH: Of people to do jury, so they lifted all of those restrictions. So yes, not only was it surprising that I wound up on this jury, but yeah, there were two other lawyers on the jury as well. All right, so let's start from the beginning because my experience felt very unusual from everything that I was expecting and from everything that I had been told beforehand. You know, there wasn't a lot of waiting. I wound up being picked for this jury within the first hour of being in the building.
HUI: Amazing.
ZACH: Right? I show up, there's a video, there's a presentation from one of the sitting judges, and then my group got called up to the courtroom. The first thing that I'll say, actually, as a reflection on compliance was when I was sitting in that jury pool room in the first 30 minutes of being there, they did show us this video, which was sort of akin to like a training video. You know, it was educating us about the process. And my first thought when they said, we're going to show you the short video was, the second sentence that came out of their mouth was, it's about 20 minutes long. And I thought, what could they, what could they possibly have 20 minutes of content for? And so that reflected very much on sometimes the length of trainings and education that happens in the world of compliance. It maybe is overly long. But it wound up actually being fine. But the thing that was a reflection in that first bit, on compliance was that we had the video and then the judge came out and basically said exactly what was in the video. And I'm just sitting there and I'm thinking, well, first of all, I suspect that the judge had no idea what was in the video. And so that the, right?
HUI: That's what I . . . my first guess . . . that was my first guess.
ZACH: And so, so, so he was just, you know, saying the things that he thought was important without having the benefit, perhaps, of complimenting the video rather than unnecessarily adding or reinforcing things that didn't need to be reinforced. And you know, there was a little bit of a cynical reflection on the world of compliance there, just thinking, let's be thoughtful about people's time and let's make sure that we're hitting the right messages at the right time and telling me the same thing twice in a matter of minutes wasn't super helpful.
HUI: Or, you know, at least say something like, I know you have watched this video and here's a few things that I really want to re-emphasize, right? So that didn't sound like that's what the judge did, but it also reminded me of one of the most horrible training stories that I've heard recently was a schoolteacher told me that they had to show up for this in-person district-wide sexual harassment training. And it was lots of people sitting in an auditorium, and the trainer came in. She came in, she proceeded to show a video of herself doing the training. And she just sat there and played this video, which by the way, was recorded on Zoom. So, the entire audience was sitting there wondering why couldn't we all just do this at home on Zoom?
ZACH: Yeah, that's horrifying.
HUI: Because this is exactly what's happening, right? So I think that that thought . . . being thoughtful and being respectful of people's time is huge.
ZACH: Yeah, indeed. Indeed. And that comes up a little bit later, too, in some of the observations I had from the trial itself. So anyway, so then I get pulled up into the courtroom. And, you know, at that point, I'm actually kind of excited. You know, it's been a long time since I've been in a courtroom. And I wasn't against sitting on a jury by any means. Like I wasn't one of these people who was like, how do I get out of this? You know, I thought, what a cool opportunity.
HUI: You really weren't.
ZACH: Yeah, what a cool opportunity this would be if I wound up getting picked. Like I said, I thought it was a pretty slim chance, but a cool opportunity, nonetheless. My first reflection, though, is from voir dire. You know, I have been a practicing lawyer for two decades. I've been an investigator for a very long time. I've conducted a lot of interviews. I've been in jobs that at times can be, you know, tense and surrounded by personalities that at times can be challenging. And with all of that experience behind me, getting asked to go up and sit on the stand and answer questions was still nerve-wracking to me. It was still nerve-wracking to me. And I wasn't a witness, you know, I wasn't on trial. You know, the jurors are treated better than just about anybody in that entire building. And yet I still, going up there and sitting on that stand still just made me feel a little uncomfortable. And, you know, it just made me further reflect on the empathy that's needed for people who are participating in something like a compliance investigation. You know, I think at times I've probably taken for granted how hard it is for that person to come in and answer questions when they're a subject or that person to come in and answer questions as part of an investigation when they're just a witness—or just how anyone might feel on the other end of being questioned by compliance. You know, we . . .
HUI: And think about when you do international investigations, some foreigners are coming to your country, summoning you likely to an austere conference room, perhaps in the hotel where they're staying. They have no context of your life. They're speaking to you in a foreign language. The interpreter may be good or may be horrible. You may or may not be able to see that your message is not being conveyed. Think about all that adding into the stress of the situation.
ZACH: 100%. 100%. And I look back, you know, 15 years ago when I was doing international investigations, when I was the foreigner in a foreign land, and I just sort of, I think I thought, well, you know, everyone talks about how important compliance is. Everyone talks about how this is foundational. This is who we are, is being a company that leads with integrity. And I just sort of thought, well, when you're asked to participate in a compliance investigation, you participate in the compliance investigation. And that's so much easier said than really thinking about the experience for that person on the other side. So yeah, I felt it in that moment. And look, I'm also not a like stage shy kind of person. And yet, being the center of everyone's attention in that room and going up there and having to sit in the witness box and answer some questions was still nerve-wracking.
HUI: I testified in a non-jury trial maybe about a year or a year and a half ago. I was surprised by the sudden nervousness that hit me when I stepped into the witness box. It didn't hit me before, but once it started, it kind of hit me and I was stumbling a little bit over the initial questions. So really the moral of all this is you just, you do not know this until you have been in the situation yourself. So just keep that in mind.
ZACH: Definitely. Keep that in mind. And I think give the people on the other end of that, whether they're a witness in an investigation that you're leading, the subject of an investigation that you're leading, or even just, you know, a colleague who is coming to you with questions about compliance, give them a little bit of grace and have some empathy in their direction.
HUI: Yes. Yes.
ZACH: I'll also say unrelated to compliance, but just an interesting sort of aside, I was shocked by the complete, then, lack of questions that came my way on voir dire. I mean, there were very few questions. They acknowledged that I was an attorney. They didn't ask me any questions about where I practiced law, what firms I had worked at. I had always worked at firms in Boston. And there was no curiosity about that. They did ask me what kind of law I practiced, but very little else, very little else. And I was just surprised, you know, so I had this like, kind of like anxiety and hype that I built up going up there. And then I got up there and there were almost no questions other than what kind of law did I practice and could I serve, you know, in an unbiased, objective capacity on the jury.
HUI: I wonder if there had been some kind of restriction in terms of what they're able to ask, that I don't know.
ZACH: Possible. All right, so then I get picked and I'll just say a little bit about the nature of the case because it was interesting. I was on this jury for three weeks and a good part of that was the deliberations, which we'll talk about. But the case itself was really fascinating. So it was a criminal case, as I said. It involved a mass shooting and a shootout that happened on the streets of Boston during a large parade and a carnival celebration. Eight people were shot. And the defendant in our case was accused of participating in the shootout. And there were 13 charges against him, including eight counts of assault and battery with a firearm—as well as various weapons charges. So, this was a big, this was a big case. One of the first observations that I had at the beginning, but then even reinforced more so at the end of the trial itself, was about something that we talk about all the time in our space, which is this idea that clarity wins and that storytelling is hugely important in the work that we do.
I sat through a week’s long trial and I got to say, didn’t really fully understand what it was about or why certain things were being explored during the trial itself, until closing arguments—there wasn’t a good story being told either through opening arguments nor as a sort of through line from the beginning to the end of the trial. And that was really tough as a juror because questions are being asked and we're kind of making inferences about how they might be relevant--but not feeling like it's coming out as part of a cohesive story. And we talk all the time about the importance of storytelling and compliance. We talk all the time about being able to tell a story about your program's performance to your executive leadership, being able to tell a story about performance and effectiveness to your board. And also, when we're talking about culture, using storytelling—and in the investigative process, as well— using storytelling as a way to unlock information from people, but also then to tell the story of what happened. To help shape a sharper, more effective remediation program at the end. And so, I'm sitting here without a story and feeling frustrated for weeks as these questions are being asked and the evidence is being put in front of us and not really getting it all until the very end.
HUI: And what you're experiencing is what we are hoping we can spare people from, which is that sense that I'm getting all these pieces, and I don't know what I'm supposed to make with them. Right? You want people to be able to say, here is the big picture. Here's the story of how everything fits in. Now you're going to get the pieces, but keep that big picture you're trying to build with these pieces in mind. It's very frustrating as you have experienced that you're asked to do something, whether it's participate in a training or make certain decisions. But you don't actually know how those things fit into the big picture of the why you have to do it. How does it fit with what other people are doing in accomplishing the overall goal? You experience what it's like to not know that for three weeks. But think about having to do that and not having the pieces, being told to do things, not having, not knowing how these pieces fit together for years.
ZACH: Indeed, indeed. And, you know, on one hand, I try to think, I try to be a little forgiving, or I tried to be a little forgiving, in thinking, well, you know, in the compliance world, we have sort of this unambiguous interest in clarity. We don't want people to be confused. We need people to have clarity. And I suppose in this case, in a criminal trial, perhaps the defense in particular benefits from some amount of confusion and the unnecessary complexity of things because they're trying to give you any number of ways to find reasonable doubt. So, I tried to be a little forgiving about that and then sort of like say, well, the prosecution really should have done a better job of telling the story. But then I also found on the defense side, this, like, unnecessary complexity that was trying to signal sophistication, but was ultimately just creating confusion in ways that didn't help. So, one example of that was there was testimony given from expert witnesses on the prosecution side about . . . the residue from the bullets that were allegedly shot out of the defendant's gun. And at the end of the day, the conclusion of that expert was that they couldn't make a positive finding of gunshot residue on the defendant's hands. And yet the defense attorney spent literally an hour, if not more, talking about forensic evidence and talking about the replication crisis in forensic science and talking about the unreliability of these methodologies and bringing in journal articles and scholarly literature challenging some of these methodologies. And I'm sitting there going, at the end of the day, the story that was just told to me is that there wasn’t a gunshot residue on the defendant's hands. That seems to be the most relevant thing here, the clearest have to reasonable doubt. Why not make it that simple for us?
HUI: I don't understand why sometimes people forget that less is more.
ZACH: Yes.
HUI: Because, again, hearing this from your point of view, your time is now filled with all of this information that maybe, well, are truly irrelevant from your point of view and are not that interesting, right? So, from his perspective, from defendant's perspective, like you said, they want you to walk away with one thing, which is they didn't find gunshot residue on this person. So, focusing on that one thing even though it may look, the defense attorney look like, you know, he's not doing much, right? I think, I wonder if that's driving the fear is now that I get up, I can't just ask a couple of questions like they do on TV. I have to drag this out to make it look like I'm earning my fees, right? So I'm going to ask these questions, like you said, looking sophisticated, looking like I know what I'm talking about by asking all these, citing all these literature, when really you want to make one point and just make that one point really clear.
ZACH: Yeah. One 100%. There was actually quite a bit of that where, you know, the defense attorney would get up and do cross-examination and would start cross-examination on a direct that, by the way, sometimes wasn't more than 30 minutes, would start their cross-examination with, I just want to remind the jury about your background. So, you're a, blank, correct? And you've been doing that for X number of years, correct? And you went to X school, correct? And I'm like, we literally just heard this on direct. We don't need you to be asking these questions again. And so, of course, you know, there was a defendant, there was a young man there whose life was literally hanging in the balance of this trial. So, on one hand, I'm thinking, let these defense attorneys do what they feel like they need to do. On the other hand, I'm sitting there thinking, not so much about you wasting my time, but you're clouding the clarity of your message and your defense in ways that actually aren't inuring to the benefit of your client. And that's frustrating. And I feel like, you know, in the compliance world, it's just about the clarity of our message. Making sure that we are being clear about what we want people to know in the context of policies, wanting to be clear about what we need people to know in the context of our trainings, making sure that the communications that we're putting out there are repetitive for the sake of trying to really permeate and connect, rather than reiterating in ways that become frustrating to people because it feels like overkill. Not leaning into complexity, where there are ways that we can simplify it and show that less is more to accomplish the end goal that we have. And I just felt that constantly in this trial.
HUI: Yeah, I mean, I think this is something that we do a lot when we run meetings and workshops or talk to clients about their training goals, their meeting goals, is we often ask them, what is the one thing you want people to walk away from this thing? If they walk away from this and remember only one thing, what do you want that one thing to be? And I think it's that kind of focus that you want. It's okay. In fact, I think it's wonderful. We advocate embracing complexity. You do it in the process, but you never lose sight of the goal.
ZACH: Yeah, yeah. It's sort of like we talk in the effectiveness context—and in our ongoing discussion about output versus outcomes . . . you know, those output metrics wind up being about, well, look how many messages we sent out. Look how many emails we sent out. Look how often this was discussed.
HUI: Exactly.
ZACH: And I think that when we talk about outcomes, and very much my experience in the context of this trial was, attention is a scarce resource. So, when we have it, use it well, prioritize clarity over volume, prioritize the relevance of your message over sort of the coverage and prioritize impact of your message over the optics, i.e. the output metrics, which maybe look good, but aren't actually showing impact. So that was a big takeaway from this whole experience.
HUI: Yes, yes, yes, yes, yes. Yep. I feel like standing up and applauding after you've just said that.
ZACH: Yeah, I was laughing at myself because I said prioritize clarity over volume and I felt like my volume actually elevated at that moment, which was ironic. outcomes over output . . .
HUI: No, it was clear.
ZACH: But the other thing that's very much related to all of this in the context of effectiveness, is sitting there and listening to all of this expert testimony. We had forensics experts, as I said, we had ballistics experts, we had fingerprinting experts. And I found it all, just as a side note, fascinating. I feel like I know more about guns and bullets and ballistics than I ever thought that I would after sitting through many hours of this testimony. But what I thought was so powerful from a compliance perspective was when you got to that moment when the prosecutor is asking these experts to essentially state their expert opinion, you know, it's always framed as to a reasonable degree of certainty, to a reasonable degree of ballistic certainty, to a reasonable degree of forensic certainty, I believe that these casings came from that defendant's gun or that these fingerprints belong to that defendant. And I'm just sitting there thinking, I wonder what would happen if we as compliance officers, if we as compliance people, had to get up on the stand and say, to a reasonable degree of compliance certainty, I believe that my program is working—or is effective. Could we do that? Could we produce the same level of evidence that these folks are presenting to say to a reasonable degree of certainty that my program is working as it should. I think the answer to that, completely non-cynically, really, is no.
HUI: I have to agree. I in fact have served in situations where I was an expert witness in assessing compliance programs. And the situations were clear that the outcome had completely failed, completely failed. So, and that's why there was a litigation, right? So, now we're going back to look at the compliance program and say, tell us what you've been doing, right? And tell us why you think it was effective, because clearly it wasn't. And the kind of evidence that was being cited by these companies was exactly those output metrics. So, we trained the people, we put reminders and checklists in these places. And they're supposed to go through all of these processes to do this, but you did all of those. The result was, however, still and complete failure of what you were trying to prevent. Right? So I can say from experience that when compliance programs have been put under scrutiny in a situation where the outcome was clearly a failure, they had nothing to . . . they had nothing to default to but output metrics, and that's where the complete mismatch has happened, and that experience has driven., some of you know my personal in focus on outcome, right? Because that is ultimately what matters, but...
We focus on this evidence-based approach. That's the reason. When you say that I think this training was effective, what is the evidence that you're citing to say that it's effective? You know, when we say that our controls are working, what is the evidence you're citing? So I don't think most compliance programs have been as evidence aware as perhaps we all should have been.
ZACH: Yeah, indeed. I would challenge and encourage people to think, you know, as they're presenting to their board or as they're kind of assessing their program internally, imagine that you put that program on trial. And we don't even need to use a, we don't even need to use a criminal standard. We can use a civil standard.
HUI: Yep. Just preponderance of evidence, though. You got to have some evidence.
ZACH: Exactly, put it up -- put it on trial, and really ask yourself, you know, what would happen if we really were putting the effectiveness of our program on trial? Or what would happen if you really thought of the presentation that you're giving to your board or executive leadership as essentially expert testimony to a reasonable degree of certainty about whether or not your program is effective? I think that changes the game for me in how we think about the things that we do.
HUI: Oh, I think it should, right? I mean, I really, I can't think of any compliance officer who today is ready to get up as a witness being sworn and testify that I am certain to a reasonable degree of certainty that my program has prevented misconduct. And that is what the program is supposed to do. So we have to work on that.
ZACH: Agreed. The next observation for me . . . so now we've kind of moved from the trial itself to the experience of being a deliberating juror, which I also have to tell you, by the way, there were 16 of us who were sat on this jury, which meant that four of us were never going to actually participate in deliberation. And I got to tell you, if I had wanted to be one of those alternates, I would have been so disappointed, you know, I mean, the experience is not full unless you've actually participated in a jury room, because let me tell you, that was something else, like something I'd never experienced before, really.
HUI: Yeah, I can't -- a lot of a lot of times when you talk about trial, I can relate and it brings me back to the days when I was a criminal prosecutor in court. I've tried a dozen or so jury trials, but I have never been in a jury room. So yeah, tell us about it.
ZACH: It was, it was bonkers. You know, I think about my work life, and I think about how many meetings I've been in where you've got 11 other people in the room and you're trying to make a decision. And it's hard—and that people have different perspectives and they're bringing different experiences to the table. And sometimes it's hard to come to a decision. Here, you're bringing together 12 people who literally would probably never meet in life except for this experience. You know, we had people in their early 20s who had just graduated college and people in their early 60s who were nearing or retired. We had people from all walks of life with all kinds of different experiences, work and personal, and asking these 12 people to come to a decision unanimously was, I'm actually going to say it, was impossible . . . because on the 13 counts, we were unable to reach a verdict on 10 of them.
HUI: Ouch, ouch, ouch, ouch. But I got to think, in addition to the very, very diverse background of all of the jurors, what also was complicating was that there was supposed to be a set of rules by which you're to do, you know, by which you're supposed to do your deliberation and reach your conclusion. And these rules can only be read to you and cannot even be given to you in writing, if I recall correctly.
ZACH: They were given, they were . . . so, the jury instructions were given to us in writing, but . . .
HUI: Good, at least you had writing, but . . .
ZACH That did not help. But no, you're right. You're right. You're right. I mean, it was the wonderful diversity in that room then met the oftentimes incomprehensible words that they put on the page in the form of our jury instruction—the description and instruction to us on the law. We spent at least half of our time deliberating, just trying to understand the jury instruction . . . trying to understand legal standard that we were being asked to apply. And I mean, there's an obvious connection to the world of compliance there in the form of policies and trainings and other communications that are intended to convey to people what is expected of them, what is required of them; the procedures that they are expected to follow. And much like these jury instructions, they are often written by lawyers and in a legalese language. And so again, going back to . . .
HUI: Yes. They're not human-centric. They were never designed with one ounce of human-centric thought in mind. So those jury instructions were not just written by lawyers. They're oftentimes a product of negotiation and litigation from the adverse parties. And sometimes they go up to appeal and the appeals court will strike down certain type of instructions, right? So, it is not just written by lawyers with the intention of trying to elucidate things for lay people. It is a very in-depth legal product and none of the making of it involved any thought of the lay people, on the other hand, that are supposed to be guided by these. And it's really the worst example of non-human centric instructions.
ZACH: Agreed. Absolutely. Absolutely. Now, in trying to rationalize that a little bit; and contrast with the world of compliance, I hope in the world of compliance that we are all aligned in our interest in clarity—and maybe conciseness; and in the jury instruction, I guess I could say, well, the defense in particular, perhaps benefits from complexity and, you know, multiple days spent by the jurors just trying to understand the instructions. So, perhaps, the sort of incentives or the motivations are slightly different—but agree. It just underscores the importance of what we talk about in compliance all the time, which is: let’s really pay attention to the words that we put on a page. Let's not overcomplicate procedures for people. Let's make people's job as easy as we possibly can while still building controls and structures that are intended to manage risk.
HUI: This is one area where I just find, you know, the use of AI being some, you know, another game changer in some ways, because when I have asked AI to draft something, it always is quite clear and quite human-centered, than many policies and procedures that I have seen being drafted by human beings, right? So this is where we can actually now learn from AI and make use of it and try to be looking at things and trying to understand things from the perspective of the intended audience rather than from the author.
ZACH: That's so funny. The AI writes more human than the humans do. That's, it's ironic, crazy, true. Although I will say on the AI front, there is this thing, there's this like style that the AI writes in that does at times drive me crazy. Not because it's unclear, but because it reads like AI. There's just like a cadence or like a mellifluousness of it that that could be a little bit grating. Anyway. The other observation that I have from the deliberation is listening. Hui, you talk all the time about how there's two sides of this coin around speaking up. And we talk way too much about the speak up part and not enough about the listening part. And I just want to be clear, when we talk about the importance of listening, we're not just talking about in the context of like your hotline or in the context of, you know, your investigative process. It’s everything. You know, we talk a lot about how context matters. The only way that you truly understand the context in which your program lives is if you're getting insight into the context by talking to people. So listening isn't necessarily like a reactive thing. You should be proactively . . .
HUI: It's a very, very proactive thing, in fact.
ZACH: Exactly, exactly. And I was just living that so deeply in the jury room because, you know, there are legal rules that were given in the form of jury instructions, but what they don't give you is an instruction manual on how to run a jury room. And, you know, your foreperson is more or less randomly selected. They don't want the job in most cases. In fact, I thought on our jury, it was actually fascinating because the judge asked a juror to be the foreperson and she said no.
HUI: Wow.
ZACH: And she told us later that in her 10 years as a judge, never has someone declined to be the foreperson. And I got to tell you, this woman who declined, she didn't even skip a beat. She was asked and she just immediately said no. And then the judge had to scramble and pick someone else. I don't know what the judge's standard was for picking the foreperson. But I will say that the first foreperson that she picked who declined was an elementary school teacher. And I just sort of thought that that makes perfect sense. And then the backup, the one that wound up serving as the foreperson was a nurse. And so again, I'm just thinking she was like going for people who are in the business of herding cats and triaging things.
But there's no instruction manual for being the foreperson. There's no instruction manual for how to run the jury room. And at times, I got to say, it was chaotic. A lot of people talking at the same time. A lot of people having sometimes side conversations; even if they weren't side conversations, multiple conversations happening in the room at the same time. People who are louder than other people, people who are more willing to speak than other people, people who have strong views on multiple sides of whatever question we're trying to tackle. And being an active listener can be difficult. But it just was so clear, so early that a huge part of this job was trying to figure out how to really hear people, how to really listen. And so, and I tried at the beginning to be very intentional about not speaking and trying to listen as much as possible. I had pretty strong views of the case going into the jury deliberations, and I really wanted to hear other people's perspectives. And that lasted, I got to say, I was pretty proud of myself. That lasted for like a day and a half.
HUI: Wow! That's impressive.
ZACH: That isn't to say that I wasn't talking in that first day and a half, but I guess I was being patient in that first day and a half. And I think I became impatient after the first couple of days. But listening, it's just, it's so important in that context.
It can be chaotic. The concepts that we're tackling are complex. Someone's life is literally at stake. And it just reinforced to me how important that is in the world of compliance. And, you know, we have been, for example, are putting together a training program this week. And, you know, one of the things that I love about the way that we approach this stuff is . . . typical training program would be like, here is the agenda, or here's the curriculum that we're going to present. Here's the information that we want people to have. And here's how we're going to present it to them. But you and I don't do that, at least not as an initial matter. You know, it starts for us by saying, okay, we need to understand the context in which this training is going to happen. So let's hear from you about your culture, the business context in which this training is going to happen. Like what's happening? What are the, what are people worried about? Or what's the business's current focus? What are their goals for the year? What have you seen in terms of people who have spoken up about issues—or common misunderstandings or what are your audit results telling you about this topic or your monitoring results or investigative results. And frankly, in an ideal world, we would be able to talk to and hear from people who would be subject to this training, in whatever way is possible, before we go and give the training to them. And if we can't do it before the training, we'll certainly do it during the training. I mean, we really mean . . . when we talk human-centered, we don't mean just having empathy for the person. We literally mean designing for them. And that can't really happen unless you talk to and understand them.
HUI: We do it throughout, you know, the workshops we run. I remember one time, you know, I was running a meeting for a board and you weren't there for this particular, but I do what we always do, which is open by asking the participants what do you expect to get out of this training, right? And the CEO of the company actually said, just by the fact that you asked this question, I know this training is going to be different.
ZACH: Yeah. Indeed.
HUI; Right? Because we're actually asking them, what is your expectation? We have our materials, we're fully prepared, but we're also fully prepared to go with you to the issues that concern you, to the realities that confront you. And, I think, that takes . . . that just takes this willingness to step in their shoes and say, this is your time, let's make sure you get what you want out of it.
ZACH: Yeah, we've definitely, I mean, that's a pretty consistent response when we do these things. As people are like . . .
HUI: Yeah, and I love it.
ZACH: I do too. I do too. I also love the ability to be able to, you know, pivot in the moment in response to what people are telling you. I mean, that's it. That’s why listen if you're not going to then act? And that's a huge part. That's a huge part of the way that we run all the things that we run, whether it's a workshop, an assessment, or training, is being flexible and agile enough to say, oh, I heard what you just said. Let's now do X, even though I was planning on doing Y.
HUI: Yes, exactly. And, you know, back to your trial, unfortunately, this is what they cannot do at trial. So when jurors, this is certainly speaking from my experience, from many years ago, but I don't think this has changed. When jury sends a note with a question, what happens is that there is, the judge would propose an answer. And that would be shared with the opposed to counsel and say, are you okay with me saying this? And there might be arguments, there may be negotiations, but the result is the judge can't just answer your questions like a human being and say, here's your question. Let me give you an example and let me explain this to you. No. She or he has to read from a carefully scripted response that's agreed to by all parties. And thank God that we don't have that limitation in real life compliance.
ZACH: Yeah. Oh my god, seriously, thank goodness, because I got to tell you, like I said, we spent half of our time trying to understand the law. A lot of walking, by the way, our jury room was on a floor above where the courtroom was.
HUI: Oh, fun.
ZACH: So, there was a lot of like walking up and down stairs to go into the courtroom, get the instruction, then go back up the stairs, talk about it, agree that not everyone understood. Go back down the stairs, rinse and repeat. But look, at the end of the day, I guess the overarching kind of compliance related observation for me is that, we talk all the time about how compliance is not an exclusively legal regulatory and enforcement exercise, even though it too often is treated as that—that it is deeper; that it's about people, that it's about culture that it's about leadership, that it's about individual behaviors, and what could be more true than applying that same thinking to the judicial process? It is at its foundation, much like compliance about rules and laws and regulations. But is there anything more human than an individual and their life and their freedom being on the line in this context.
HUI: Indeed.
ZACH: And so, it just really reinforced for me that simple but often, too often, overlooked truth that compliance is not just about rules. It is about people. It's about all of these other things. And when we treat it that way, we do it differently. And, you know, being on a jury was a . . . it was, more than anything, yes, there's the, I felt like I did my civic duty and I guess I feel good about that. But it was more than anything for me, a fascinating social experience and experiment. And compliance is the same. Compliance is the same because at the end of the day, we're trying to build a program that shapes human behaviors—and it often is an experiment, and we should treat it as one. And that requires experimentation; that requires understanding the science behind these things; trial and error; and building evidence to ultimately figure out what works at preventing the misconduct from happening.
HUI: Thank you so much for sharing this fascinating experience. I don't know how many listeners out there have ever been in a jury room. I'm guessing not many, but it's totally so very exact, though, to extract so many relevant professional observations from such an experience. So thank you.
ZACH: Can't help myself. Absolutely. And thanks everybody for listening.
ZACH: And thank you all for tuning in to TheBetter Way? Podcast. For more information about this or anything else that’s happening with CDE Advisors, visit our website at www.CDEAdvisors.com, where you can also check out the Better Way blog. And please like and subscribe to this series on Apply or Spotify. And, finally, if you have thoughts about what we talked about today, the work we do here at CDE, or just have ideas for Better Ways we should explore, please don’t hesitate to reach out—we’d love to hear from you. Thanks again for listening.