Science Education for Judges

Hon. Marvin J. Garbis, United States District Judge, District of Maryland, USA

Judge Marvin J. Garbis obtained a B.E.S. from Johns Hopkins University, attended Harvard Law School and earned an LL.M. degree from Georgetown Law School. He served as a public defender in Washington, D.C., and later in the Tax Division of the U. S. Department of Justice before entering private practice. He was commissioned to the United States District Court for the District of Maryland in 1989. He is the author of seven books on tax law and litigation and has been a member of the adjunct faculty at the University of Baltimore, University of Maryland, and the Georgetown Law Schools.

In the United States and elsewhere in the world, judges of 2006 are doing essentially the same job as did judges at the beginning of the last century. We, like our predecessors of 1906 (and, indeed, those of 1806 as well), are resolving litigation by finding the pertinent facts and interpreting and applying the legal principles embodied in constitutions, statutes, learned treatises and, depending upon a country's legal system, precedents.

It is true that modern technology has changed significantly the manner in which a court system and judicial chambers may operate. We now have such devices as computers and word processors, electronic data storage, e-mail, faxes, the Internet etc., that enable virtually instant communication and facilitate the rapid presentation of massive amounts of information. Nevertheless, the essential duty of the judge remains the same: the obligation to understand the case presented, reach an intelligent and just result, and communicate the decision to the parties in a manner that builds confidence in the judicial system. As well stated by Judge Arthur J. Gajarsa of the United States Court of Appeals for the Federal Circuit: "The trial court's inherent search for truth is the basic building block by which the judicial process maintains its credibility within the fabric of our society.” TechSearch, LLC v. Intel Corp., 286 F.3d 1360, 1378 (Fed. Cir. 2002).

However, it has become increasingly difficult for the judiciary in many countries to deal with cases presenting scientific issues. Justice G. L. Davies of the Court of Appeal, Queensland, Australia noted that:

It is necessary for a judicial system to find a method by which judges may become adequately informed to decide scientific and technological issues presented in cases that come before them. I use the term "adequately informed" to mean that the judges should be able to develop a sufficient understanding of the subject matter presented to reach a rational decision. The problem is particularly difficult with regard to science because most judges have not received much formal education in even the basic principles of science.

An adequately informed judge need not be educated too far beyond the subject matter of a particular case. For example, if a patent case involved a device dissipating a static electrical charge to avoid damage in the manufacture of computer chips, the judge would need to know enough about electrical conductivity to understand the functioning of the invention and the accused device. The judge would not necessarily have to learn, however, very much about computer chips, or the physics that underlies them, beyond the fact that they are sensitive to static electricity discharges.

It is not possible to require all judges to be trained in some scientific field before becoming a judge. Nor is it feasible to provide judges, after they take office, with an in-depth education in some scientific field. The cost - including particularly the burden of having a judge devote time to learning science rather than judging cases - would be prohibitive. It is impossible to make every judge, or any judge for that matter, an engineer, chemist, physicist, surgeon or biologist.

In the common law systems, traditionally judges have been "educated" by expert witnesses presented by the opposing parties. This works only to the extent that the judge has an adequate foundation to evaluate the testimony.

I suggest that it is important for a judicial system to seek to insure that judges presiding over cases presenting scientific and technological issues are adequately informed to render intelligent and just decisions. Techniques that

• Employing a neutral expert to present an introductory tutorial attended by the judge and lawyers in the case to enable the judge to understand the scientific or technical evidence to be presented.
  
• Having opposing experts appear and testify at the same time so that the judge and the opposing experts can engage in a focused discussion.
  
• Having some of the judges in a court become educated in different areas of science or technology to serve as resource judges to be specially assigned to particular cases or to be available to consult with their judicial colleagues about scientific and technical matters.
  
• Providing in depth science and technology presentations for judges as separate programs and as part of general continuing judicial education programs.
  

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