IP: Paul Amer and truth

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: "Nycum, Susan H" <Susan.H.Nycum () BAKERNET com>
Date: Thu, 7 Mar 2002 17:01:46 -0600
To: "'farber () cis upenn edu'" <farber () cis upenn edu>
Subject: RE: A MUST READ  two on  Ballmer (of MS) on software engineering

Dear Dave:

I read with much interest your "must read" input from Bob McClure. A couple
of points in it reminded me of the following:

Many years ago when I was Director, Campus Computing Facility at Stanford,
Paul Armer,then my boss, came into my office to tell me of an article he had
just read in, I believe, Science Magazine.  It identified and described
scientific truth and advocacy truth and the difference between the two.
Simply put scientific truth was defined  as the concept that there is only
one answer and advocacy truth is truth where there is more than one right
answer.  We discussed the topic a bit and opined that computer scientists
typically thought in terms of the former and lawyers the later. In any case
from then on when we had discussions on difficult issues we would look at
each other at some point and check "Is this scientific truth or advocacy
truth"?  It made for a lot of fun, but it also saved us from
misunderstandings. 

In this era of much interdisciplinary team work, I find it useful to bear
that homely little experience in mind and recall that equally smart, ethical
and well meaning people may come from different orientations and cultures.

Best regards,
Susan Nycum   



-----Original Message-----
From: Dave Farber [mailto:dave () farber net]
Sent: Tuesday, March 05, 2002 3:27 PM
To: ip
Subject: IP: A MUST READ two on Ballmer (of MS) on software engineering


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

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