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IP: A MUST READ two on Ballmer (of MS) on software engineering
From: Dave Farber <dave () farber net>
Date: Tue, 05 Mar 2002 18:27:21 -0500
Obviously I endorse Bob's view. Dave ------ Forwarded Message From: "Robert M. McClure" <rmm () unidot com> Date: Tue, 05 Mar 2002 16:15:57 -0700 To: farber () cis upenn edu Subject: Re: IP: two on Ballmer (of MS) on software engineering I would like to elaborate a bit on William Friedman's message re Ballmer. First, I would like to state that precious few lawyers "get it" when it comes to technical matters, even many of the patent attorneys who have undergraduate technical degrees. I can count on the fingers of one hand the lawyers I have met who have the slightest understanding of anything technical. To be sure, there are some, but they are a rare breed. In the course of being deposed (and cross examined) numerous times as an expert witness, I can state with some conviction that the poorest questioning was done by attorneys who had a small amount of technical understanding. They didn't even know what they didn't know. As to the specific point Friedman makes that a good cross examination can be conducted without much knowledge of the subject matter when a witness makes a material misstatement of fact is true. The problem seems to be that the questioner often does not know (as in the Ballmer case) that the witness has not given a straight answer. The fundamental error that was made was assuming that Ballmer was sufficiently expert to testify as to whether the IE code could be removed or not. And in fact, he might honestly have been under the impression that it was not possible to remove the code since he is not personally expert in the matter. Proper examination technique calls for extreme care in asking questions that the questioner himself does not know the answer to. Since the management of Microsoft has gone on the record previously that the IE code in particular would be very difficult to remove, it would have required a leap of faith to assume that Ballmer might say otherwise. I certainly would not expect him to. On the other hand, he might very well have been responsive to the question, "Who in Microsoft is best qualified to answer the question as to the degree of difficulty in removing the Internet Explorer code." To me it is clear at this point that DOJ does not want to win, but rather to get the matter behind them as quickly as possible. Friedman lost me on his last point in which he claims that know-it-all technical folk line up on all sides of an issue. I have not found that to be true. For the most part you can get the same answer to any *technical* question from a technical expert (try that with lawyers!) but will get the spread of opinion of the *implications* of a technical question. As a example of the difference, the question "can an exchange sort be used to sort 1,000,000 records" will uniformly be answered "Yes". The question "Is that the best way to sort 1,000,000 records" will get a variety of answers, mostly starting, "It depends...." The essential difficulty is that "legal thinking" and "scientific thinking" are so disparate that it is very difficult for either side to understand the other. It is almost as if one were speaking Greek and the other Chinese. As someone (forget who) said that war is too important to be left to generals, I think one could also say that the law is much too important to be left to lawyers. Bob For archives see: http://www.interesting-people.org/archives/interesting-people/
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- IP: A MUST READ two on Ballmer (of MS) on software engineering Dave Farber (Mar 05)