Monday, April 6, 2009

Are we advocates?

Some say that we as practitioners have a duty to help shape policy and case law. Think of the SWGs, the working groups whose job it is to help define the path we all will take. But what about case law? This issue splits many of us as to our proper role.

Is it proper for us to be concerned with shaping the law through our testimony and the testimony of our peers? Concerned, yes. What about an active role? Where do you stand?

On the government side, one can't really pick and choose what case will receive more attention than others. You work them all and hope for the best. To the extent that you can, you do your best to explain to the court and the jury what the technology is doing, how it's relevant, what you've done with it, and so forth. The private side is a little different.

Privateers can pick and choose cases. They can pick them for a variety of reasons; money, convenience, contract, or test case. I think that most will understand the profit motive. Convenience is best explained as working close to home. Contracts mean servicing a particular client or court district. But what about test cases?

"Bad legal judgments based on poor or incomplete understanding of technical systems or devices are especially problematic since they are likely to affect the development of industry standards. Bad decisions can also create confusion in understanding where thedefinition of best practices stands for a given forensic discipline at any given time," writes Smith and Bace - noted experts on Forensic testimony.

If a privateer sees a case faltering, a case that could have ramifications upon the entire community and create bad case law ... what's the duty to jump in and try to steer it in a "proper" direction. How many are comfortable with the privateer jumping in (given that our system is based upon precedent)? As government agents, would your agency support you lending a hand to a case to attempt to prevent a judgement that would be adverse to your agency or the community at large? If yes, great. If not, why not? Have you asked?

All this is to say, I think we are all part of the process. As such, we all have a duty to get into the game and give it our best shot. If we see something, a case or an agency in need of assistance, and we can lend a hand ... why not offer?

I, as privateer, relish the chance to get in and help to the extent that I can. I've done it a few times in cases that may have an impact on my other career. I see nothing wrong with trying to leave the system in a better state than I found it.

What say you?

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