Close Close
Popular Financial Topics Discover relevant content from across the suite of ALM legal publications From the Industry More content from ThinkAdvisor and select sponsors Investment Advisor Issue Gallery Read digital editions of Investment Advisor Magazine Tax Facts Get clear, current, and reliable answers to pressing tax questions
Luminaries Awards

Regulation and Compliance > Federal Regulation

Misrecollected (sic)

Your article was successfully shared with the contacts you provided.

“If it turned out that what he said was wrong, that doesn’t mean he is a liar. It means he may have misrecollected what happened.”

These words–which may or may not turn out to be immortal, depending on what happens in the situation that engendered them–caught my eye and piqued my interest the other day as I was reading The New York Times on the way to work.

The first thing that struck me was that word ‘misrecollected,’ which if I recollect correctly (that is to say, if I don’t misrecollect), I had never heard before. So, I checked my trusty dictionary and sure enough, couldn’t find it there. Thus does the language take another body blow.

The next thing that struck me was the fine parsing of the thought and the blanket exemption bestowed thereby on the perpetrator who ‘misrecollected.’

If you guessed that these words were spoken by a defense attorney, you are right. They were uttered by no other than Theodore V. Wells Jr., lead defense attorney for Scooter Libby, who is on trial for lying to a federal grand jury and the Federal Bureau of Investigation about his role in outing Valerie Plame, a CIA operative whose husband, Joseph Wilson, wrote an op-ed piece in the Times criticizing the Bush administration.

It’s not my intention here to rehash this case or deliver any opinion on it. But what struck me about Wells’ remark quoted above was how it pertains in situations that are more grounded in daily life than leaking the identity of a CIA operative.

Take, for instance, a scenario where the suitability of a sale of an annuity is called into question. This is one area where misrecollection seems to run rampant. If it is a case of dueling recollections, and even if the consumer is misrecollecting, you can put your money on the fact that the consumer will prevail almost every time.

Consumers rarely seem to recollect what they were told as the sale was happening; indeed, their misrecollection is the stuff that legends are made of. The reason for this is that in many cases they didn’t know what they were listening to in the first place and were too confused or embarrassed to ask. So when the product they bought went south, their misrecollection clicks in about what they were or were not told.

Good agents, despite their good efforts, know the suffering that comes with being the butt of consumers’ misrecollection.

But sometimes consumers’ recollection is correct (i.e., not a misrecollection) because they were indeed misled. Heaven help the agent if he says one thing during the sale but misrecollects in testifying about it–the game is up.

So often a dispute among parties like this comes down to what is more believable–the client’s misrecollection or the agent’s recollection. The powers that can make such a decision–i.e., courts, insurance commissioners, etc.–often seem to take a consumer’s misrecollection as carrying more weight than an agent’s recollection.

This rampant misrecollection is what is behind the compliance drive and the push to make sure every ‘i’ is dotted and every ‘t’ crossed in a transaction leading up to a sale. The idea is that getting your recollection in writing (and having the client sign off on what they are agreeing to) is the best armor an agent can have in these memory skirmishes. Getting it in writing is supposed to put the kibosh on consumers’ misrecollections carrying the day. My guess is that sometimes the sign-off works and sometimes it doesn’t.

The best antidote to misrecollecting is obviously to tell the truth in every case, even if it hurts. Then, you not only have the best defense, but you don’t have to worry about mauling the language as well.

Steve Piontek



© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.