When I was in college, studying for my engineering degree, I took a course in Game Theory. I fancied myself actually quite good at it; it was one of the few “masculine” courses I actually felt quite capable. Game theory is essentially taught by setting up a game: the players, the rules, goals and the payoffs. Obviously, one must know one’s goals before one makes choices. One needs to think not only about his own payoff, but others’ payoffs. Thus, we should put ourselves in others’ shoes and try to predict what they will do. This is the essence of strategic thinking.
I had forgotten this somehow. I guess when you are in college, lessons are being hammered at you every day, and problem-solving is your entire context. In the real world, we become complacent, forget what we know, and simply wander through our days like ghosts of our former selves.
I guess when I remembered this very simple point, something illuminated for me about Enron. I talk quite openly of the motives of the Enron Task Force – career advancement, recognition – but I had glossed over it so quickly, I left out the nuance.
In the case of Jeff Skilling, the basic task force was made up of a team of nine members. The number grew and shrank over time, but that was the core number of ‘players’. They were all very different people and though I (and others) tend to look at them as a group – The Enron Task Force – in actuality that thing does not exist. Nine very distinct and strong egos were constantly clashing for dominance. They were every bit as aggressive as they accused Jeff Skilling being while at Enron. There is nothing wrong with that kind of aggression, but it is does leave scorch marks. So instead of asking myself what “The Enron Task Force” got out of asking a certain question of Jeff Skilling or Dr. Lay, or using a certain strategy against them, or interpreting (possibly innocently enough) a document, I must make it more personal than that. “The Enron Task Force” might have teamed on things like over-arching strategy, but each one wanted to shine and so I think to really understand them, you have to take them person by person.
It is quite possible that Jeff Skilling simply was not playing the game correctly. He was playing a different game, and he simply didn’t recognize it. His goal should not have been “to prove his innocence” as I think he did quite well. His goal should have been to defeat each individual prosecutor by correctly guessing where that prosecutor was going and frustrating his efforts. On the stand, Skilling let down his guard for a moment, and Berkowitz attacked. Recall back when Sean Berkowitz asked Skilling, in that oh-so-snarky way, if he’d spoken to his jury consultant during the break. Consider the payoffs for Berkowitz asking and keeping silent. There was no drawback to him asking the question. If he didn’t ask, Skilling would have continued to look unflappable and calm. If he DID ask, Skilling would have to give up a bit of territory and look momentarily guilty because apparently jurors don’t like jury consultants.
Skilling’s mistake was allowing himself to believe that truth mattered at all – thus “proving his innocence.” He had underestimated Berkowitz at a crucial time and Berkowitz went in for the kill.
He did it again when he asked about the check Skilling had written for his former girlfriend to help with her company. Skilling, by his own admission, was not prepared for that question. His attorneys had not prepped him on it and he was caught completely off guard.
To Berkowitz, this was a godsend. All he had to do was ask questions out of nowhere, and Skilling was suddenly at sea. The payoff was enormous. Berkowitz was achieving his goals of earning a conviction NOT by trying to prove Skilling’s guilt but by focusing very narrowly on reasonable doubt, by serving it up in tiny increments over a period of days.
Jeff saw the game as an epic battle between good and evil. Berkowitz saw each question of his cross-examination as a tiny battlefield, in subtle, small bite-size pieces.
I believe this might account for some of the difference between the Corporate case and the Broadband case. The broadband defendants were highly technical individuals, used to thinking through problems logically. On the stand, they were generally well prepared. (Scott Yeager was not; his attorney did not even prep him, preferring to have his answers be spontaneous.) But I think they also heard the question behind the question – the penumbra of questions that could follow a single question. This explains why they were not caught in any big gotchas. The prosecutors were possibly not as quick-thinking as Berkowitz to try to knock them off balance, or they were simply playing the same game as the defendants and it was pretty well matched.
I am remembering now when I told one Enron executive about a personal issue I was having. I told him that my adversary had “completely destroyed me.”
“Of course he did,” the man said, “you gave him the means to do it.”
It was an obvious truth but I’d never thought of it in quite the same way before. It drove home the essence of game theory. Remember who your playing with; keep their end-game in mind. This is more than just playing devil’s advocate. This is understanding their goals and motives on a much deeper level.
I stand by everything I’ve ever said about Sean Berkowitz. But I’d also like to add that for a completely immoral person, he played the game very well.
