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one of the premises is wrong here | 217 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Ouch - but ...
Authored by: celtic_hackr on Wednesday, November 28 2012 @ 09:23 AM EST
Since PJ didn't answer you question about whether judges can rule on facts, I

No and Yes. Meaning no they can't and yes they can. In that order.

No Judges don't, normally, get to rule on the facts, that is a jury's job,
unless both sides in a lawsuit agree to have the judge rule on the facts.

Both sides can choose to allow a judge to rule on the facts by either explicitly
stating so, or by not asking for a jury. So if you file a lawsuit against
someone and neglect to request a jury trial you may have implicitly agreed to
have a judge rule on the facts in the case. American law is really screwed up.
You can lose your right, at least on a case by case basis, to do something by
not objecting or not enforcing said right in a timely manner.

IANAL, so I may have screwed up that part, or the whole, of the answer, so don't
rely on my understanding, if it matters to you. Get a lawyer.

[ Reply to This | Parent | # ]

  • Ouch - but ... - Authored by: Anonymous on Wednesday, November 28 2012 @ 09:27 AM EST
    • Ouch - but ... - Authored by: Anonymous on Wednesday, November 28 2012 @ 02:27 PM EST
  • Ouch - but ... - Authored by: PJ on Wednesday, November 28 2012 @ 05:38 PM EST
Ouch - but ...
Authored by: Anonymous on Wednesday, November 28 2012 @ 11:24 AM EST
More correctly, judges are not expected to rule on facts,
period. Even if the facts might seem wrong or
counterintuitive (absent a bench trial). When a judge does
rule on the facts (as in a bench trial), it is often between
two contested versions of the facts, although in limited
circumstances the judge is allowed to take judicial notice
of certain facts, or to appoint a court expert witness.
Judicial notice is for extremely cabinned, and wouldn't be
applied to programming knowledge.

Most law schools teach an old case, colloquially referred to
as Wagon Mound II, on proximate cause. The case is
interesting for a lot of reasons (it involves a fire on a
ship), but there's this bizarre bit of reasoning in it. Why?
Because no one could know that oil on water was flammable.
Huh? Guess what- it was a stipulated fact introduced by
testimony via expert witness in the case.

For various litigation reasons, sometimes a strange or
arguable wrong "fact" is introduced, and if the parties both
agree to it, then it becomes a fact in the case.

Now, all of that being said, you don't piss on a judge's leg
and tell him it's raining.

[ Reply to This | Parent | # ]

one of the premises is wrong here
Authored by: Anonymous on Wednesday, November 28 2012 @ 02:16 PM EST
Yes it is true that a juror is not supposed to make a conclusion of fact based
on experience outside the walls of the court room. However, one of the
principle duties of a juror is to evaluate the credibility of the witnesses and
testimony from both sides. It is here that outside experience is not only
permitted, but required.

If there is testimony from one side that it had been raining for an hour and the
pavement was wet, while the other says that even though it was raining for an
hour, the pavement was still dry, a juror is is expected to use common sense to
find that the second witness' testimony is less credible than the first's.

Here the judge is stating that is is not credible to assign a great deal of
value to a piece of computer code that could be duplicated easily in a short
period of time by any elementary programmer.

the judgement on this point is not whether or not the code was copied, but
whether it was credible to believe that that piesce of code constituted anything
more than a de minimus amount of value to the product as a whole.

[ Reply to This | Parent | # ]

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