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Bloggers Impacting the World of Litigation
DaveKleiman writes "Will bloggers change the world of Supreme Court litigation by inspecting published opinions? Rachel C. Lee has an interesting take on the question in the Stanford Law Review, Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy In the Internet Era (PDF). She begins the review with: 'Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty — they are already capable of having a substantial impact on Supreme Court litigation.' The review hits on many key points both for and against the use of blogging, but ultimately concludes that members of the Court and their staff will have to refrain from reading any blog post relating to a pending case, no matter who it is written by. It's even possible we'll get carefully drafted rules preventing blogging by attorneys." It's going to be tough to make any such prohibition work. After all, Groklaw's PJ is not an attorney.
.. the law lobby will try to make it illegal for the "proles" to discuss case law.
There is a war going on for your mind.
I haven't read all of the 39 pages of this report but from what I gather, I don't see why this should be any different than scientific blogging (or, in pre-internet terms, armchair science).
... like bird behavior. And it's a significant contribution to that field. Maybe he realizes what he's discovered and maybe he doesn't know the intricacies of bird behavior so he blogs about it.
Example: I read Bryan William Jones' blog. It sometimes has scientific topics although rarely anything new. Let's say Dr. Jones makes some important discovery in a field he is not an expert in
Is this a peer reviewed published piece of research? No. Is it important to the field? It might be. Should he get credit? Yes. Should bird behaviorists be required to read every blog on the internet looking for a breakthrough? No. Could it go unnoticed? Yes. Will this happen often? Highly unlikely. Will Dr. Jones rare footage of the endangered African Upside-down tufted titmouse's in flight mating dance be a hit to the general public who like little birdies? Probably.
I see lawyering in a similar light. You expect the laywers and judges involved in a case to be completely on top of everything and knowledgable about everything (try to suppress laughter, please). But of course someone like Groklaw's PJ could bust out a piece of work putting more of the puzzle together than any of the inept dinosaurs running the show. Similar questions and answers may follow this scenario as in the case of the blogging scientist. Most importantly, that this position may be popular with the public but it's not a part of the case unless someone involved takes note and makes it so and puts it into the spotlight (or Bird Behavioral Journal in the former example).
That said, there is one serious flaw in this analogy. Science is usually correct or wrong. And usually easily decided (upon reflection, perhaps I should have used something more hotly contested like quantum theory instead of a bird dance). Law, as we all know here, is not only many shades of gray but also something that many people on the internet get emotional about (which is a good thing) and think they are experts in (which is a bad thing). I have not read the legal minutiae of my state or even country. I know the popular things and I extrapolate on them--almost always erroneously.
In short, I would opine that it would be a violation of free speech to outlaw it and dangerous if not stupid to make it legally important. There is a reason for the BAR exam. If you have not passed that, you probably just want to be a citizen on a soapbox instead of a legal target.
Blogging is by and large a disposable medium that can be morphed into important things by the appropriate people. It is satisfying to express one's ideas like I am doing right now. Leave it that way.
My work here is dung.
While this isn't the case for all blogs, there are a vast amount that aren't tied into sponsors, or wheels inside wheels that would prevent them for really exposing activities as such. There are too many cautious media moguls out there that don't want to hurt their base that news because a glossed over sort of event. People are afraid to try and expose something and be wrong, ie Dan Rather and the Bush Vietnam debacle. Yes its good to verify information, but at the same time sometimes one needs to have a little guts when trying to expose the truth.
The musings of just another geek and his junk.
This is absurd. Supreme Court Justices are allowed to do their own research. Traditionally, this has included everything from cases (even cases from foreign jurisdictions) to law review articles. I don't think that anyone can pretend that law review articles have never taken sides in a Supreme Court controversy.
Why should blogs be treated any differently? I see no reason. I suspect this author wants to take active steps to maintain the influence of law reviews. It's not terribly surprising. The influence of law reviews has been on the decline for *years*.
Even the most prideful members of /. go about saying "IANAL" almost out of sheer reflex any more. I'm tired of hearing it.
Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.
Persuasiveness is much more important than having good evidence in both cases. Hardly something that makes one into a socially unquestionable demigod.
Do what thou wilt shall be the whole of the Law
I'm not sure that the use of blogs is different in anything but(possibly) degree from what has happened since pretty much the beginning of law.
It is (barring the replacement of statutes with strong-AI lawbots) impossible to write law that is self interpreting. Interpretation is inevitable. And, given the way humans are wired, culture and people outside the case writing about law, legal theory, and the case itself, will inevitably influence that interpretation.
Blogs are different than law journals, in that they aren't subject to peer review or anything(though, a lot of law blogs are published under real names, and putting your reputation on the line has an effect); but they are rather similar to other sources of input on lawyers and judges(half remembered newspaper clips, life experiences, conversations with colleagues and friends, and so forth). Blogs widen the circle of informal discourse a bit, just as email has a broader reach than snail mail; but it doesn't strike me as a genuinely novel development.
For that reason(and because I'm leery of interference with speech in general) the notion of restricting blogs seems both absurd and dangerous. Obviously, being on the internet doesn't free you from the usual rules of confidentiality, good taste, and so forth; but it is no more dangerous than other venues of informal discourse, which aren't restricted.
Is that kind of like having an MBA from Harfurd?
So, it's suggested that they should NOT consider legal opinions on well established legal blogs, but yet those lefties in there look to European courts to inform their decisions and that is ok?
The idea that "judges must not read blogs" is absurdly extreme. We don't forbid judges from reading newspapers; why are bloggers suddenly called out for special mistreatment? It's true that we don't let juries look at stuff because they're not familiar with the details of what is or is not permissible evidence, but judges do have such training.
In fact, the article opens with Kennedy v. Louisiana, where blogging was a tremendous help. In this case, the Supreme Court's ruling was based on wrong information, and the bloggers pointed this mistake out. Kudos to the authors for being brave enough to point to this as an example. In any case, it shows that bloggers can have a very positive effect on court outcomes, by calling attention to critical mistakes in the court's information.
I want to see people more involved in political discourse. If they know that their discussions can't possibly have any effect, then they're less likely to have such discourse. Heck, I think that's why we have such low voter turnout... too many people think "my vote can't make any difference".
I do agree that there's a risk of hearing more of one side than another, but the direct presentations to judges along with research that the judges themselves do should help counter that. The other extremes seem worse than the problem they're trying to cure.
- David A. Wheeler (see my Secure Programming HOWTO)
Why should a blog be treated any differently than an amicus curiae brief? People are entitled to have and express their opinions, and judges have the right to not read them. Personally, I think crowdsourcing legal arguments would make for better law; there would be fewer missed points in arguments, and therefore fewer bad precedents. Finally, I don't see how telling bloggers to STFU could be viewed as anything but a violation of the First Amendment. What may be valid is the blocking of jurors' access to blogs, as jurors aren't allowed access to any evidence not approved by the judge.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
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Compared to some AMJur articles I've read, I'll take Wikipedia or a blog anyday.
members of the Court and their staff will have to refrain from reading any blog post relating to a pending case, no matter who it is written by. I sincerely doubt that someone can progress to the level of appointment to the supreme court without having learned to recognize bullshit when they see it, so I don't see the rationale for this.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
PJ isn't only not an attorney, she's not a journalist, a nice person, a supporter of free speech, and certainly not a good person to be running Groklaw, even if she did "found" it.
Anyone who simply deletes posts that she disagrees with is doing Linux and open source a huge disservice. I'd love to see the community distance itself as far as possible from groklaw (and now that SCO is gone, Groklaw no longer has a purpose anyway).
In the course of their tenure, they have to carefully shield themselves from the opinion currents (socially, they will remain mostly in their family circles, and avoid big social venues), as they their job requires them to strictly adhere to the Constitution and the jurisprudence (where relevant). As a matter of course, they will avoid reading newspapers articles relating to "their" cases, and blogs naturally fall in this category.
Whatever discussions we had about his work have been kept generic and mundane, and with the utmost care not to reveal the inner legal workings of the cases; in short, nothing more than what is available to court observers.
Should the judges turn off NPR whilst driving to work? Should the judges avoid watching TV? Should the judges stop reading newspapers? Should the judges not look at bumper stickers? Should the judges live alone?
Why are blogs special?
The problem is that the judge is then introducing "testimony" (for lack of a better word) into the case. And if that testimony helps one side, the other side does not have the chance to present information or analysis that is counter to the testimony.
Furthmore, deep pockets could easily outweigh good analysis. Farming blog posts in support of your side of a case should have no bearing on the outcome of an appeal; unfortunately, that may become a real issue. It's simply the court of public opinion, except digital -- and quite possibly, easier to manipulate than general public opinion.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
"any more. I'm tired of hearing it."
yeah, me too. It's "these days".
I agree because the internet has become the greatest tool that average citizens have to participate in the democratic process. To restrict their free speech is a restriction on the power of citizens to effect change on their government. Free speech is a cornerstone of America, and should not be forfeited due to a supposed "clouding" of a judge's final bottom-line.
-Qs
Positivism has largely supplanted naturalism in our jurisprudence ...
Whoever cannot see that has no place in this conversation.
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Newspapers, journalist (tv and print), and the those who taught them, have a lot invested in the current system. As such they strive to portray their columns as always without bias and to portray blogs as always biased. See, papers want us to believe that opinion is confined to the opinion page when it is clearly not. The easiest method available to any journalist to express their bias is by omission.
The real mud in the eye was then Dan Rather used obviously fake documents to smear then President George Bush right before the election for his second term. It was so blatant of an attempt to sway an election and so obviously fraudulent that the press (read anyone not a blog) didn't how to handle the response from the "blogosphere" other than to discredit individual bloggers and blogging as a whole. I am sure we can all remember the disparaging images that the old press try to conjure up in the minds of the average person as to what constituted a blogger. They tried to use an unsavory image to discredit facts that they did not like.
Summary, they will do whatever it takes to maintain their image and position. Blogs threaten them because the large number of blogs means the whole story will get out. You can slant a single site but not all of them. However papers have the advantage of captive audiences which blogs don't. The Old press needs to come to terms with the fact that the old methods will not work. You cannot have an agenda when every watch dog out there will call you on it. Either report it all factually or openly declare your bias (like MSNBC which is so shameful as to give credit to blogs becoming a real force).
* Winners compare their achievements to their goals, losers compare theirs to that of others.
Wow, someone using effect as a verb correctly!
It is pretty sad how few know when to do this, my wife had a social work textbook entitled "Affecting Change"; I cringe every time I see it.
Oh and http://xkcd.com/326/
For once, the Libertarian Party truly had the Democratic and Republican parties over a barrel when they failed to file their candidates before the deadline in Texas. Neither Obama nor McCain should have been on the official ballots in Texas because they failed to meet the deadline for filing. With quite literally no legal explanation, the motion was denied. No reason for the denial was offered. It was just "no."
Had it been an independent or a third party, we know what the outcome would have been and there would have been explanations citing rule of law and procedure. It would be interesting to see if this judge had ruled on similar cases concerning ballots and the like and to have their outcomes compared. This is something a great blogger might be able to pull off.
I don't think it is that big a problem. Ideally, judges are chosen because they demonstrate a history of fairness, not because they are a blank slate. If a judge can reasonably set aside his life experience, he can reasonably be expected to set aside (or just ignore) information and opinions about a case (I find it reasonable to expect a judge to ignore poorly and weakly sourced information).
Nerd rage is the funniest rage.
"Law could easily be an undergraduate track, or perhaps a one year graduate degree, as it is in many countries around the world. " But then how would you keep everyone out of your lucrative field?
What if that mistake were in the personal interest of the blogger? How can one be sure he didn't omit some crucial detail? A court of law is supposed to be neutral with both sides having equal access. If the judge reads one blog, shouldn't he read *all* of the millions of blogs on the internet?
Of course, judges are trained in evaluating testimony and all that, but even then it's not good to let an outside opinion influence the judge's mind in any way. If an attorney thinks a blog is important to the matter, he's free to quote from that blog in his statements in court. It just should be presented in such a way that both parts are aware of the arguments and allowed to present counterpoints.
Lawyers often read a judge's past decisions to understand better that judge's thinking process, that's part of the game. It wouldn't be fair to let that thinking process change in an unknown way during the trial.
I don't see this as a question of freedom of speech because everyone is free to speak but no one is forced to listen. I think judges should not read any external opinion on any case during the course of a trial, and that includes newspapers and magazines, too.
It just wouldn't be lucrative anymore ;-)
Actually, according to the article, we do:
If this is a problem, and I grant that it could be, it seems to me the only reasonable requirement would be to restrict the material the judge is ethically allowed to gather.
Some lawyers, especially judges and the lawyers hooked in with the various of bar associations, have a tendency to get very 'holier than thou' when it comes to the sanctity of the legal profession. They want to defend their ivory tower from incursions by the impure.
They are unwilling to accept that law is inherently a dynamic, vital profession, both noble and filthy. A Court isn't something that sits above the world in judgment; it's something that is intimately and directly a part of world as it actually happens.
Judges do not like to be scrutinized. For example, it is an absolute bitch to try to get records to make a statistical study of judges' sentencing decisions. They want to keep that information from you, because (a) they don't trust you with it; and (b) they are afraid of political fallout. They want to keep their ivory tower sacred for the priesthood.
And then there's the First Amendment. As much as Judges would like to, they can't screw very much with lawyers who blab too much. And why try, anybody can get a proxy to advocate online for them.
Censoring lawyer speech is both a constitutional minefield and a quixotic adventure. You can't draft effective regulations that satisfy the Constitution, and even if you could, you couldn't enforce them because clever lawyers would defeat the regulations by anonymous and proxy postings.
Judges just have to do the best they can, just like they always have.
It's completely absurd. It's been twisted and distorted by two centuries of legalism to the point where it's not fulfilling its function anymore, and, just like the banking system, instead of providing a non productive but necessary service, it confiscates a significant part of the GDP to keep on keepin' on.
Take jury trial. Jury of peers, supposedly. Ok then, why are patent disputes handled by the same type of jury as a murder trial? There is something disturbing about companies making hundred of billions paying millions to top lawyers who can then basically have random people kidnapped into a courtroom to serve their litigation needs.
The amount of punitive damages towards individuals is also staggering. I see many stories, such as those involving RIAA vs individuals, where the latter are facing damages that would bankrupt many small businesses. This doesn't make any fucking sense. Just like 300 year prison terms -- what's the damn point? Don't these people realise that even the scariest murderers don't live that long? No, they don't rejuvenate by drinking the blood of their victims, Your Honor, that is F-I-C-T-I-O-N.
And the cost of getting justice is also staggerlingly high. When someone with deep enough pockets can basically out-lawyer any commoner, well, you know your revolution is over; there is a higher class and it doesn't have to obey the same rules.
You really need to take a look outside your country and see how it's done -- it's certainly not perfect anywhere, esp. not in mine, but it's not the massive clusterfuck I'm seeing over and over.
Haven't read the PA yet, but I think the point is that the *attorneys* themselves shouldn't be blogging. Someone like you or me, or PJ, should be able to read about a case and state our own opinions (Freedom of Speech and all that), but if you are directly involved in a case, you have to be very careful what you say, and to whom.
OK, OK, now I'll go and read the article....
Your Servant, B. Baggins
Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner. Persuasiveness is much more important than having good evidence in both cases. Hardly something that makes one into a socially unquestionable demigod.
You know, you're partly right. A number of law schools hire prominent rhetoricians to teach logic and argument (it does make sense - the discipline of rhetoric evolved from Greek legal practices and the Sophists, who trained people how to argue for various public purposes).
Stanley Fish, who became fairly well known in academic circles for his contributions to English literary criticism, began applying his rhetorical methods to public policy and law, and eventually was hired as a professor of both English and Law at Duke. He has left English altogether now, becoming the Dean of the Law School at Florida International University. He does not have a law degree (only a Ph.D. in English) yet taught at one of the nation's top tier law schools (Duke). From what I gather, he's not the only one: law schools need people to teach a specialized brand of argument that can dissect and then repurpose the words of others.
"Those who believe in telekinetics, raise my hand" - Kurt Vonnegut, Jr.
Did you actually read the textbook? If not, how do you know that it might not actually be about affecting change? It is possible to change change you know. Maybe someone should write a textbook about effecting change about affecting change.
There is no -1 Disagree mod. Slashdot.org/faq defines mod options. USE IT.
Hi, civil jury trial rights are controlled by the seventh amendment. Blame the founding fathers, not the current legal system, and contact your representative if you want to try and change it.
In regards to punitive damages, for copyright they're not really punitive damages but statutory damages most the time. Here, blame congress for putting the damages provisions in the copyright act. Again, contact your rep, don't blame the lawyers who have to argue the statute they are given. As per punitive damages generally, 45 states allow them and the federal supreme court has tried to limit them to a reasonable multiple of actual damages. However, they are a jury question most the time so that pesky 7th amendment comes back up. Talk to you state rep about removing punitives if you don't like them.
In regards to the 300 year prison terms. What do you care? If they want to put a guy away forever, let them put some ridiculous number. I think your concern here doesn't make any practical sense.
As per teh cost of litigation. There is a tough balance in this regard. Make it really cheap to sue and you have nuisance suits all the time. Make it really expensive and no one can sue. There are fee shifting provisions for certain causes of action that can make it easier to bring suit because costs and fees get paid by the loser (like in England). Also, you have contingent fee agreements that allow access to the courts but have lawyers taking around 30%. There's a difficult balance beyond the simple fact that litigation is time consuming, may involve expert witnesses, and may have lots of discovery. You could remove some of the procedural protections to save time, but over the centuries the courts and legislatures have found the procedural hoops useful.
So if the American legal system is going to change we must look to the federal and local legislatures and possibly attempt a constitutional amendment. Also, the US system is so litigation happy because we lack the social safety nets many other countries enjoy (i.e. if I am injured and don't have medical insurance, my recovery comes from the person who injured me not from government medical care). Therefore, related to litigation reform will probably have to be massive changes in the social welfare system.
It's easy to mock the system from a distance, but each of your concerns has either policy reasons or entrenched law that is very painful to remove (e.g. that pesky constitution).
"A medication, medicines or drug is any substance or combination of substances which may be used in or administered to human beings or animals with a view to treating or preventing disease or to making a medical diagnosis. Commercial medications are produced by pharmaceutical companies and are often patented. Copies of former patented drugs are called generic drugs."
this defintion is base on european law which says: (a) Any substance or combination of substances presented as having properties for treating or preventing disease in human beings; or (b) Any substance or combination of substances which may be used in or administered to human beings either with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis.
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Dx
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Drug Rehab Facilities-Drug Rehab Facilities
IMAL and I agree!
It isn't magic, the state bar associations want to protect their monopoly with things like bar exams. (I am a member of the bar in Florida).
I see no problem in real-world Judges "being influenced" by outside sources.
This proposal to ban legal blogging is analogous to banning judges from reading legal blogs, IMO.
Are we to ban judges from reading legal books? Are we to ban judges from listening to legal radio shows? Are we to ban judges from watching Judge Judy?
The measure of a Just judge lies in his or her ability to weigh the evidence in a case. This absolutely is done within the framework of the judge's past, present, and future experiences, including all outside influences.
Two days ago someone used both lose and loose correctly in a post. Today it was effect. If I see someone use FUD to mean "a statement (which may be true) designed to cause Fear, Uncertainty and Doubt" rather than "any statement which is untrue or I believe is untrue" then I will know that the End of Days is at hand.
None of them can see the clouds; The polished wings don't care.
I disagree - judges should have any information which is both relevant and true (or probably true with a quantification of 'probably' and reasons for that) at their disposal.
Justice is not served by handing judges the opportunity to make wrong decisions because of wilful ignorance of objective reality.
For instance, say there's a dispute over a car accident (got to get a car in here somewhere), which hinges on the layout of a junction. One party makes a submission to the court asserting some information about the junction. This information is wrong. The other party does not, for whatever reason, contest it. The judge happens to drive through this junction at some point over a weekend (or goes there deliberately - whatever); should the wrong information supplied by the first party stand because it wasn't contested, or be thrown out because the judge now knows that it was wrong?
How about another example - a judge issues a temporary injunction requiring a website to be taken down for the duration of proceedings (the defendant's website). Some reasonable time later, the plantiff complains to the judge that the website hasn't been taken down. The defendant says that it has. Should the judge:
It seems obvious to me that the latter is far preferable - whether the website is still up is an objective fact, and getting facts from two parties who both have an interest in distorting them, whilst deliberately refraining from finding out yourself seems irresponsible.
In the real world, however, the latter is the one course that the judge is NOT meant to take.
To make up some numbers:
Let's say that there are 10 wrong decisions. It we don't allow judges to use information from outside, then all those decisions will continue to be wrong. If we do allow them to use information form outside, then one of those decisions will no longer be wrong (but it'll be down to chance as to which that one is). The present system seems to think that it would serve justice better if all 10 wrong decisions stood, than one person, who would otherwise have got a wrong decision, got a right decision due to chance.
FGD 135
no way.
The reason the material a judge gets to see is so tightly controlled is because the legal system has spent ~1000 years figuring out how to make sure that information is credible. If you're going to let a judge go off and conduct his own investigation the big problem you're going to run into is astroturfing.
Let's talk about that car accident - the judge goes online and finds your flickr account and sees some photos that clearly indicate the accident wasn't your fault. Now, were those photos genuine, staged, or photoshopped? In a court room you are sworn to tell the truth, and your adversary can bring in expert witnesses to question the validity of your evidence. On Flickr, you can put up whatever the hell you want - and the judge isn't qualified to determine the appropriateness of that information.
The reason we have an adversarial legal system is so that each side can put their evidence on the table and argue about what it means.
The model rule states that a judge âoeshall not investigate facts in a matter independently...
It is fundamental to legal systems that have evolved from the English system that judges do not investigate. But not all legal systems are descended from the English.
Why shouldn't judges investigate? Why shouldn't judges question witnesses? Why shouldn't judges themselves call witnesses?
Which is better: to have a judge try to balance conflicting testimony of paid adversarial expert witnesses; or for a judge to be able to call upon whatever, and however many, expert witnesses (paid by the court) that the judge (trained in investigative techniques, and trained to be fair and impartial) finds to be helpful in his investigation of the truth?
To the bunker! The apocalypse is nigh!
FGD 135
I never said that he should go to my Flickr. I said that he should go to the actual physical junction and see for himself what the layout of the junction is. I never said that judges should use sources provided by either side, or of unknown provenance. I specifically said that they should know where the source has come from, and how reliable this makes it ("probably true with a quantification of 'probably' and reasons for that"). A random flickr account would be unreliable and wouldn't be considered (and I'd expect the judge to list their sources - so either party could object to them, as in the present system).
In the junction example, the judge would go and look at the junction, and would (to ensure the validity of the information gained), check with the City works department that the junction layout hadn't been changed since the alleged incident (and document that he'd done this).
To use your table example - both sides put their cards on the table, but the judge can now point out when someone has dropped one of their cards, or that the other guy seems to have put down 5 aces on the table.
FGD 135
The idea that "judges must not read blogs" is absurdly extreme. We don't forbid judges from reading newspapers; why are bloggers suddenly called out for special mistreatment?
Given only two alternatives, I'd a damned sight rather forbid judges to read blogs than to have anyone else forbidden to write blogs.
Please. "Impact" is not a transitive verb unless the subject happens to be a tooth.
In other news, astrophysicists have announced that they now know what all that dark matter is: it's stupidity.
and you get served by Big Out of State Corporation
If you get sued by the RIAA, instead of getting served, the South Park version happens: you get fucked in the a** :)
Like our tax code, our laws are entirely too complex; complexity in turns yields many interpretations - so many, in fact, that in many ways our system of law is beginning to resemble a religion.
I suspect that we are coming full circle; the only conclusive proof that I lack may yet be found in a lost scroll somewhere in the Middle East: A notation that King Solomon awarded the plaintiff's and defendant's lawyers 1/3rd of the baby apiece as fees.
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
I agree, it makes sense, but you quickly run into line-drawing problems.
Theoretically, a technical question has a "correct" answer, but in reality technical experts disagree all the time. Looking at the intersection seems like a no brainer, but if you're letting the judge investigate, he might also want to know who was in the intersection first, and he might be able to determine that by consulting some kind of auto-forensic expert. The judge might never know if that expert has conflicts of interest. Ideally, in an adversarial open court, lawyers can devise questions to get at the expert's motives.