Is It Too Much To Expect Judges In Tech Related Cases To Understand Tech?

from the just-saying... dept

Fri, Sep 18th 2009 6:48am — Mike Masnick

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.

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Filed Under: judges, metatags, tech

34 Comments

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Xanthir, FCD (profile), 18 Sep 2009 @ 6:56am

The saddest part...
...is that the judge probably thought he was being super tech-savvy in his judgement. He's just a good 20 years out of date...
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Dark Helmet (profile), 18 Sep 2009 @ 6:57am

Answer
"Is It Too Much To Expect Judges In Tech Related Cases To Understand Tech?"

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.
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Designerfx (profile), 18 Sep 2009 @ 7:13am

so what do we do?
No judge should be unable to understand tech. If they don't understand something they should seek clarification by their own assistants who have better technical expertise. Or they can, I don't know, ask for an expert. Duh.

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.
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Anonymous Coward, 18 Sep 2009 @ 7:32am

I'm not getting the significance of this ruling and I'm not really understanding what the ruling was or why? I'm lost.

"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?
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Steve R. (profile), 18 Sep 2009 @ 7:33am

Beyond Tech
Its not simply a question of understanding technology. Lawyers seem to believe that a "solution" can be obtained for any issue provided it is psychoanalyzed ad nauseam. Whether the "solution" can ever be implemented in the real world, is totally irrelevant. Needles to say this results in ludicrous decisions.
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Anonymous Coward, 18 Sep 2009 @ 7:37am

I'm not getting the significance of this ruling and I'm not really understanding what the ruling was or why? I'm lost.

"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?
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Richard (profile), 18 Sep 2009 @ 7:39am

Re: Answer
Problem is - they think they understand it (seems to have been the case here.

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.
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Trails, 18 Sep 2009 @ 7:40am

Re: so what do we do?
Actually part of the problem is that the judges who aren't already technically strong can only digest the information which they are presented with.

THAT information is subject to bias or the arguing attorneys' incompetence, mistakes and ignorance.

It's a bit like a game of broken telephone.
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Chronno S. Trigger (profile), 18 Sep 2009 @ 7:40am

Re:
The case is irrelevant to the article. The point is that the judge is saying that a web site can't be found because the words aren't in the meta-tags even though that's not how search engines work. Search engines work on a combination of what's on the web site and other sites linking to that site. meta-tags aren't involved like the judge thinks. If a case was decided on that false assumption, then that's a problem.
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Anonymous Coward, 18 Sep 2009 @ 7:43am

Re: so what do we do?
"super intelligent, highly qualified, unbiased and typically experienced attorneys who became judges."

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.
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Anonymous Coward, 18 Sep 2009 @ 7:48am

Re: so what do we do?
"Uh... did you say 'yutes'?"
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Anonymous Coward, 18 Sep 2009 @ 7:58am

Re: Re: so what do we do?
Vinny: Is it possible, the two utes...
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.
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DS, 18 Sep 2009 @ 8:05am

Re: Answer
Um, no, it isn't too much to ask.

After all, it's expected that they understand murder, and other aspects of the law.
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:Lobo Santo (profile), 18 Sep 2009 @ 8:14am

Re: Re: so what do we do?
"Yes, but they all have the same basic defeciency(sic): they studied law, instead of a serious subject"
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.
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Anonymous Coward, 18 Sep 2009 @ 8:24am

Welcome to the Us justice system, ruled by 200 year olds that haven't been laid in 150 years!
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Sea Man, 18 Sep 2009 @ 8:34am

Well...
They *are* judges, which means they *were* lawyers, which means they are just money grubbing scum with zero consideration for the lives they touch (read "ruin").
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jjmsan (profile), 18 Sep 2009 @ 8:46am

It is the attorney's job to make sure that the judge understands the case. That's the whole point of having expert witnesses. If one side presented metatags as important it is up to the other side to refute it. The judge and jury are only supposed to consider the evidence as presented.
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Designerfx (profile), 18 Sep 2009 @ 8:58am

Re: Re: so what do we do?
I agree with this, and below, that there should be qualification requirements to handle set types of cases.

*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.
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Dark Helmet (profile), 18 Sep 2009 @ 9:18am

Re:
"It is the attorney's job to make sure that the judge understands the case."

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."
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NullOp, 18 Sep 2009 @ 9:25am

Answer
"No." It is indeed not too much to ask that a judge know something about tech if he/she is hearing cases based on tech. Would a judge not feel inadequate hearing a case on business law if they were not up-to-speed or just ignorant of the applicable laws? Yeah, yeah, I know, some it wouldn't bother even a little bit. Also, attorneys in the case should have made the relevant points clear...
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Jason, 18 Sep 2009 @ 9:44am

Ignorance of the law is not a defense.

Therefore ignorance of technology on the part of judges should not be tolerated.

Of course, this is not the case.
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Cheese McBeese, 18 Sep 2009 @ 9:46am

Lawyers and elected politicians are widely accepted as representing the scum of the earth. Both are bottom-feeding parasites. So what do you get when a lawyer is also a politician? A judge.

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.
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Chronno S. Trigger (profile), 18 Sep 2009 @ 9:58am

Re:
That's a good point. The second a judge points out that a lawyer is lying out his ass, the lawyer will file for a mistrial on the grounds that the judge is bias.

I think that still points to a huge problem with our legal system.
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Anonymous Coward, 18 Sep 2009 @ 10:37am

Re: Re: Answer
So you expect judges to be experts on everything? Its obvious that judges should be experts on the law. Afterall they went through a bunch of law schooling and practice before they became judges. Now if they hear a case related to medicine they should be doctors too, they should be engineers for tech issues, etc.? We can't all be experts on everything. Much like the jury they make decisions based on what is presented to them more than their own personal insight on a given subject. So, yes it is too much to ask for all judegs to experts on ________.
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Anonymous Coward, 18 Sep 2009 @ 11:01am

Technical compentcy, lazyness or something else?
Big Giant Worldwide Corporation files suit against a Very Small Start-Up located Utah. BGWC files the suit in a South Carolina District court with a 78 tear old judge that is known not to be strong technically, or even use a computer or the internet. Asks for a summary judgment to stop VSS-U from continuing any operations and give ALL documentation to BGWC. The case is based on a very technically detailed discussion of the issue. All technical affidavits presented by BGWC are from employees of BGWC. All technical affidavits provided to the court by VSS-U are from industry experts, college professors and technology experts in like industries. Judge issues summary judgment against VSS-U within a day without allowing VSS-U and their attorney time to travel to SC to present anything. Stating that BGWC's testimony was more credible and VSS-U's presence would not have made any difference. Then promptly went on vacation for two weeks.
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?
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Free Capitalist (profile), 18 Sep 2009 @ 11:23am

Re: Answer
Having contemplated epistomology a little, I'm more inclined to want for a 'panel-review' of proposed judicial decisions involving technical assumptions.

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?
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Free Capitalist (profile), 18 Sep 2009 @ 11:40am

Re: Re: Answer
Actually, I should have made my own 'panel-review' reply under Richard's. In general I agree.
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Anonymous Coward, 18 Sep 2009 @ 12:01pm

Cynical law-student joke: What do you call the guy who finishes last in his law-school class?
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.
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Anonymous Coward, 18 Sep 2009 @ 1:35pm

Is It Too Much To Expect Judges In Tech Related Cases To Understand Tech?

Slight rewrite:

Is it too much for bloggers in patent related cases to understand patents?
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peter (profile), 18 Sep 2009 @ 1:39pm

technical ignorance
I think this post relates to the point about TV shows connecting to their fans. Technical ignorance breeds technical incompetence. TV shows don't know how to connect to their fans because the producers are ignorant of methods they might use, just as judges are ignorant of the technical realities of the internet. My son and I laughed at a recent Cleveland Browns game when the crowd was asked in the 2d quarter to text their vote on the best photo of 3 posted on the scoreboard. The prize for those who chose the photo chosen by a plurality? You'd get texted that winning photo. We both thought it a really pathetic attempt by someone with little understanding to "connect" to the "wired generation." It reminds me of IT people about 15 years ago -- there were a lot of people who held themselves out as experts, but most of those people were incompetent hacks who could get away with it because their employers were so ignorant of what to expect. Technical illiteracy is bad enough. Not even knowing you're technically illiterate is truly sad.
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Phil, 18 Sep 2009 @ 4:31pm

Re: technical ignorance
@peter
... Very well said.
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Anonymous Coward, 18 Sep 2009 @ 10:20pm

The irony is, Google uses Meta Tag to lower your search score, because if you put words in the meta tags instead of your actual content, it's more likely to be one of those fake pages that put a lot of tags while showing spam/porn/whatever.
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Gene Cavanaugh, 19 Sep 2009 @ 9:13am

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?
Absolutely! Court proceedings are supposed to be adversarial, where each side presents their arguments and a judge or jury merely selects the more persuasive side.
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!
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sprearson81 (profile), 8 Jun 2012 @ 7:09pm

It would appear that time and time again, yes, it is too much.
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