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This chapter is from the book

If Credibility Is Always the Answer, What Are the Questions?

The legal system has slowly evolved, reflecting the influences and experiences of Western culture through many generations and regenerations of theories and practices of conflict resolution. One point that may be difficult for technologists to accept, given that so much of the IT revolution is driven by the need for speed, is that the law is "designed" to function slowly. This is to accommodate the "one step forward, two steps back" nature of technological and societal progress without making social policy that either cripples further advance or creates too many unacceptable risks for society in the adoption of new technologies. Furthermore, the law ultimately attempts to deal with the most difficult scenarios that arise when scientific crispness meets human messiness—the addition of humans to even the most elegant analytical constructs can result in wildly unpredictable results. Because it deals with human frailties, the law tends to focus its attention in the process of litigation on human attributes of trust and believability, and not solely or even primarily on the absolute properties of correctness.

Thus some of the things that matter most when participating in the legal rituals of litigation and dispute resolution are determined by legal and philosophical concepts that have been around at least since the time of Cicero.

  • Is the testimony relevant?

  • Is the witness believable?

  • Do other similarly qualified and credible witnesses agree with these conclusions?

  • Is the witness's testimony comprehensible?

  • Is there admissible evidence to show that the testimony is factual?

  • Contrast that set of criteria to the questions asked when testing a scientific or technical argument.

  • Is the argument logical?

  • Is it based on a provable hypothesis?

  • Has it been rigorously tested?

  • Does it follow from established scientific fact?

  • Has it been subjected to published peer review and critique?

Although one might argue that the goal of the legal process is to derive the truth—presumably the same goal as an unbiased scientific or technical inquiry into causation or proof—there are differences in the techniques applied for the process of considering the issues and for reaching the final judgment about the results of the inquiry. In particular, the treatment of context is quite different. In technical inquiry, in order to use mathematical models of process, researchers and design engineers often try to eliminate or else dampen the effect of context. In legal process, given the importance of bias, motive, and interest to the credibility of witness testimony, establishing the full context is critical to establishing all the relevant facts of a matter in litigation. This context is established through an objective assessment of all the evidence as subjected to rhetorical interpretations by the advocates. In the end, the fact finder applies his or her common sense to those arguments and the evidence and seeks to reach a fair and final verdict.

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