Is It Too Much To Expect Judges In Tech Related Cases To Understand Tech?
from the just-saying... dept
Eric Goldman highlights yet another case where basic technology illiteracy leads a judge to make very questionable statements. In this particular case, a judge declared that because a specific phrase ("spoiled brats") was not found in the metatags of a website, someone who searched on that phrase "would likely not encounter" the page in question. Yes, the actual terms did appear on the page itself -- just not in the metatags. As Goldman notes:What??? Putting aside the fact that the metatags were ignored by many of the search engines even at the relevant time (back in the late 1990s), this is a backwards way of assessing site visibility for the search term "Spoiled Brats." So what if the term Spoiled Brats wasn't in the metatags if the term was on the page?Once again, this raises questions about how those who are technically illiterate on specific subjects are able to make rulings where a basic understanding of how the tech works could make a pretty big difference on how a judgment comes out.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Reader Comments
Subscribe: RSS
View by: Time | Thread
The saddest part...
[ link to this | view in chronology ]
Answer
In the legal system's current iteration? Yes, probably. The theory is that the court SHOULD be presented with knowledgable experts that can explain the technology in question to the judge/juries/etc., but in reality, that isn't what happens. What normally happens is that both sides of a lawsuit or whatever present their OWN expert testimonies, often at complete odds with one another. So, in an odd mirror to the American political process, you have two belligerant sides of a legitimate argument presenting two sets of contradicting "facts", thus nullifying each other.
I've said this before, but I don't understand why our justices can't have a focus derived from a little extra schooling and then have specialist courts/justices. Those ruling on technology cases should have a minor or an AA in computer science. Political issues? A minor or an AA in Poli/Sci. Cases dealing with consruction liability? AA in Construction Management. And so on, and so on.
The added benefit is that you'd speed up the courtroom process by not having to call so many "expert" witenesses, not to mention that the courts could slap down silly lawsuits based on pure misunderstandings of technology and/or technology law.
[ link to this | view in chronology ]
Re: Answer
Best solution is probably for all judges decsions to be reviewed by a neutral expert panel (at least 5 separate, anonymous experts) If any of them throw up a problem it should be thrown back for re-consideration until the judge gets it right.
[ link to this | view in chronology ]
Re: Re: Answer
[ link to this | view in chronology ]
Re: Answer
After all, it's expected that they understand murder, and other aspects of the law.
[ link to this | view in chronology ]
Re: Re: Answer
[ link to this | view in chronology ]
Re: Answer
However my distrust of groups of people with power in general leads me to believe that these reviews should be external to "the system".
How about an open-source style system for allocating reviews of technical assumptions in judgements? There should be some assurance of neutrality and disassociation of those signed on to a specific review.
If it were even a good idea, the question would be, how could we accredit reviewers without having academia come in and foul the whole system?
[ link to this | view in chronology ]
so what do we do?
There is 0 excuse for judges to misunderstand something in that way. These people are supposed to be super intelligent, highly qualified, unbiased and typically experienced attorneys who became judges.
If they don't use smart methods to ask for help understanding tech and are handling a case, they should either a: recuse themselves from the case or b: recuse themselves from being a judge out of embarassment.
[ link to this | view in chronology ]
Re: so what do we do?
THAT information is subject to bias or the arguing attorneys' incompetence, mistakes and ignorance.
It's a bit like a game of broken telephone.
[ link to this | view in chronology ]
Re: Re: so what do we do?
*however*, that introduces another level of slowing down court cases/flooding availability of certain qualified individuals. Not to mention people who want to try to handle something that they believe they are capable and in situation 1: being grossly unable to comprehend it or 2: doing okay but needing more experience to understand.
[ link to this | view in chronology ]
Re: so what do we do?
Yes, but they all have the same basic defeciency: they studied law, instead of a serious subject ;-) I'm, kidding, but not a lot.
It's fairly easy for an intelligent scientist to become a good lawyer, but almost impossible for an intelligent lawyer to become a good scientist.
[ link to this | view in chronology ]
Re: Re: so what do we do?
Yes! Quite right.
I think Dark Helmet's got the right of it: There should be additional qualifications for Judges--especially towards certain 'niche' fields.
Honestly though; any legal structure which in its totality is beyond the comprehension of the 'average person' and requires experts (lawyers, judges, et al) to work it should be scrapped and replaced with a simpler system.
[ link to this | view in chronology ]
Re: so what do we do?
[ link to this | view in chronology ]
Re: Re: so what do we do?
Judge: Eh, the two what? Uh, uh, what was that word?
Vinny: Uh, what word?
Judge: Two what?
Vinny: What?
Judge: Uh, did you say 'Utes'?
Vinny: Yeah, two utes.
Judge: What is a ute?
Vinny: Oh, excuse me, your honor. Two YOUTHS.
[ link to this | view in chronology ]
"In this particular case, a judge declared that because a specific phrase ("spoiled brats") was not found in the metatags of a website, someone who searched on that phrase "would likely not encounter" the page in question."
So what? If I made a webpage and it was about cars and the word car wasn't in the webpage whatsoever, so what? Why are there legal ramifications to this? It's my page, I can include or exclude whatever the heck I want. and so what if a judge declares that the word car wasn't in the page and thus someone who searched for it won't not likely encounter it. Maybe that was partly my intention. Who cares. What does that have to do with a legal ruling?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Beyond Tech
[ link to this | view in chronology ]
"In this particular case, a judge declared that because a specific phrase ("spoiled brats") was not found in the metatags of a website, someone who searched on that phrase "would likely not encounter" the page in question."
So what? If I made a webpage and it was about cars and the word car wasn't in the webpage whatsoever, so what? Why are there legal ramifications to this? It's my page, I can include or exclude whatever the heck I want. and so what if a judge declares that the word car wasn't in the page and thus someone who searched for it won't not likely encounter it. Maybe that was partly my intention. Who cares. What does that have to do with a legal ruling?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Well...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Great, except that attorney's are advocates for ther CLIENTS, not for the truth. So the whole idea behind your expert witnesses goes right out the window, as I already explained, because they'll just dig up whatever "expert" agrees with their position. So, even though one of the sides' "expert witnesses" is inevitably correct, which of these contradicting "experts" is the judge or jury supposed to listen to? After all, they're BOTH experts stating opposite "facts".
This is what pisses me off about the adversarial system of justice and politics in our country. You have a legal system that proudly boasts that attorneys represent their clients to the fullest without prejudice. That sounds great, except that without prejudice part almost always means "without regard for the truth".
In the words of Lewis Black, "At some point, we need some "fact" facts so we know what the fuck is going on."
[ link to this | view in chronology ]
Answer
[ link to this | view in chronology ]
Therefore ignorance of technology on the part of judges should not be tolerated.
Of course, this is not the case.
[ link to this | view in chronology ]
In a murder trial, a judge (or jury) would not get away with a ruling based on personal views of DNA evidence, etc. Experts (from both sides) are accredited by the court and then the judge and jury reach a ruling based on weighing the collection of presented facts from the experts.
If I were in court and the judge was using himself in the capacity of 'expert', as this judge clearly was, I'd push for some kind of mistrial if things didn't go my way.
[ link to this | view in chronology ]
Re:
I think that still points to a huge problem with our legal system.
[ link to this | view in chronology ]
Technical compentcy, lazyness or something else?
The judge refused venue change (To either VSS-U's state or the state where BGWC US haedquarters are.) and didn't ask any technical questions or seemingly even consider any technical testimony that the case was based on.
You have to wonder, even if this judge was technically competent, would he have taken the time and gone to the trouble and effort used this knowledge?
[ link to this | view in chronology ]
Answer: "Your Honor"
Subtext: That's where you end up if you are not smart enough to get hired by an established law firm or bold enough to hang up your own legal shingle.
[ link to this | view in chronology ]
Slight rewrite:
Is it too much for bloggers in patent related cases to understand patents?
[ link to this | view in chronology ]
technical ignorance
[ link to this | view in chronology ]
Re: technical ignorance
... Very well said.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Legal Issues Legal Issues by Michael Masnick Fri, Sep 18th 2009 6:48am Share This Filed Under: judges, metatags, tech Permalink. Is It Too Much To Expect Judges In Tech Related Cases To Understand Tech?
ANY judge that acts as advocate, judge and jury is, in essence, a dictator or monarch ruling by "divine right", and should be impeached!
In this case, it sounds like one side (the attorney, or the client advising the attorney???) did not meet their duty, and the judge, in selecting the most persuasive argument, was also a victim of the injustice that resulted!
But making judges over into dictators is a horrible idea!
[ link to this | view in chronology ]
[ link to this | view in chronology ]