Litigation-Driven History




(1)
FWO Fellow at Ghent University, Ghent, Belgium

 



Abstract

In this chapter I discuss a selective list of American examples of historians serving as expert judicial witnesses. The chapter reviews the earliest mentions and debate of expert witnessing at the end of the nineteenth century, after which it turns to Brown v. Board of Education, the Sears case, and an example from toxic tort litigation. The following topic discusses a practical guide to expert witnessing in the American judicial system for historians. Legal as well as extralegal aspects are considered and elaborated on through examples from personal reports from former experts. Considerable attention is devoted to the Daubert ruling and rule 702 of the Federal Rules of Evidence which have envisioned the Judge to perform a gatekeeping role when reviewing expert testimony. In a final part of the chapter, I discuss the issues which are responsible for making expert witnessing into a controversial practice.


Gentlemen of the jury, there are three kinds of liars, the common liar, the damned liar and the scientific expert.

An American Attorney


The term litigation-driven history finds its origin in the United States. Public and academic historians have increasingly been called upon to serve as expert witnesses in court. The historical research those experts do in preparation of their court report and possible deposition and testimony in court, is called litigation-driven history. The website of the American Historical Association (AHA) lists the possibilities for historians to work in a legal related environment under the rather unfortunate chosen name: historians as advocates.1 Legal companies, lawyers, companies, or private persons hire expert historical knowledge to aid them in court. The practice of expert witnessing is not a recent one. The first topic of this chapter examines a short history of expert witnessing in the US and the late arrival of historians in the courtroom. The second part of this chapter addresses the diversity of subjects on which historians testify in court. I go over them thematically with several examples of different cases and expert historians who served as witnesses. These two topics introduce several practical and theoretical problems expert historians face in American courtrooms. These issues will be discussed at the end of the second part of this book. Furthermore, I discuss the practical manner by which historians prepare their testimony and the legal setting in which it is given. The legal rules of evidence for expert witnesses are also addressed, since they have a great influence on the expert’s report. Moreover, these legal rules inform us of how the legal profession defines scientific knowledge or what kind of witness testimony judges expect in court. After this chapter I confront the different elements through which the European experience of expert historical testimony differs from the American experience.


7.1 Expert Witnessing Through the Ages


Common law has a far-reaching tradition of letting experts testify in court to help the judge or the jury understand “expert knowledge.” The often cited American Judge Learned Hand wrote an article in 1901 in which he discussed common law cases involving expert witnesses as far back as the year 1345.2 In this article he stated that: “[n]o one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best.”3 Historian Christopher Hamlin discussed expert witnessing in the Victorian age from 1860 until 1885. Hamlin concluded that modern legal problems concerning the expert witness’s testimony troubled Victorians as well.4

The first problem raised by Victorians is that of objectivity or its antonym advocacy. Hamlin describes how lawyers and judges doubted the ability of expert witnesses to present disinterested science. In other words, they doubted expert knowledge would be without bias or preconceptions.5 A person who sold his credibility to the highest bidder was not compatible with the norms and methods of science in the Victorian age.6 Expert scientists were demanding fees that exceeded regular witness fees, which increased suspicion about their intents when coming to court.7 There was a serious risk, Judge Hand declared, that the expert could become the “hired champion of one side.”8 Another epitome concerning expert witnesses is provided by legal scholar Gary Edmond, who writes that at the beginning of the twentieth century expert witnesses were considered “cash crazed hired guns.”9 Or as historian Morgan Kousser’s frequently quoted title puts it: “Are Expert Witnesses Whores?”10 Judge Foster, who wrote an essay in 1897 on the practice of expert testimony, quoted a lawyer who addressed the jury as follows: “Gentlemen of the jury, there are three kinds of liars, the common liar, the damned liar and the scientific expert.”11 The fear that an expert witness would distort evidence to support the claims of his employer is a concern that is as active today as it was at the end of the nineteenth century.12 In conclusion, from the very beginning of the practice expert witnesses performed a controversial legal practice.

A second problem was the existence of apparent disagreements between experts in court. Edmond, who discussed expert witnessing at the beginning of the twentieth century, wrote that debate amongst experts was considered problematic to identify reliable knowledge in court.13 Such discussions amongst scientists were considered to be not scientific. Because, lawyers reasoned, if both experts were objective and made use of the correct methods, then both would have to come to the same conclusion.14 Not much has changed as G. Jones, an independent historian who works as an expert witness, declared at the 2013 National Council of Pubic History (NCPH) conference in Ottawa: “judges and advocates don’t like disagreements or contradictions.”15 This is, according to Hamlin, a naïve idea of scientific method. Dissent is not the nemesis of science, if anything “the conflict of strong opinions is central to the progress of science.”16 Or as Judge Foster put it about a hundred years ago: “men may honestly differ in opinion.”17 Hamlin concludes that science is presented unrealistically by lawyers and that the adversary procedure is not alien to science. Edmond agrees with Hamlin’s conclusion when he argued that judges and lawyers have always used “a priori” images of science.18 Around 1900, good science was presented as a strictly positivist pursuit. In legal terms, science had been defined in a similar manner.19 Proper scientific practice produced results that were reliable and could be tested. Judges and lawyers had, according to Edmond, a clear-cut idea what the difference was between “good” and “bad” science. At the beginning of the twentieth century different kinds of knowledge were divided into valuable evidence and invaluable evidence.20 This chapter will confirm that the three main problems Hamlin identified for expert witnessing at the end of the nineteenth century, namely the concern for biased expert evidence, the adverse attitude towards the existence of disagreements between experts, and the unrealistic conception of science as a whole have remained problematic for expert witnesses in court, not in the least for historians.

Judge Foster provided some alternative forms of expert witnessing. For example, he argued to allow the court to appoint its own expert. This idea has become a legal option with the introduction of the American Federal Rules of Evidence (FRE) in 1975. Although the option is extant and is legal, it is almost never used by judges.21 Another possible alternative can be found in a legal brief from 1896, which argues in favour of an institutionalized committee of experts, permanently paid be the state.22 According to Hamlin, Victorians proposed to draft ethical codes for those scientists who served as expert witnesses. Judge Foster similarly called for an ethical code that would have a preventive effect on the supposed bias that existed with experts in favour of their employer.23 Judge Hand wrote that another solution would be to allow the judge to impose general principles of interpretation on the jury, concerning the expert’s testimony.24 Judge Foster said that above all, expert witnesses should look to themselves and be pure of heart and just, when they try to represent the truth.25 Edmond names an extra incentive for experts to present the truth: not only does the expert present the facts of the case; he or she also defends himself and his profession, risking his own reputation and that of his colleagues.26 In conclusion, in spite of the alternatives that have been proposed, the problems with expert witnesses that bothered lawyers and judges more than a hundred years ago have remained relevant today.


7.2 An Introduction to Historians as Expert Witnesses in American Courts


Historians are active as expert witnesses in a rising number of cases in a wide variety of subjects. Especially since the 1950s, historians have become active in various legal proceedings.27 The first instances where historians were involved in litigation were civil rights cases, such as the Brown v. Board of Education case from 1954. Although no historian appeared as a witness at the trial, historians were involved as consultants. Another important case is the Equal Opportunity Commission v. Sears, Roebuck and Co. from 1984, in which two historians took to the stand for opposing parties. Both Brown and Sears are the most famous examples of interaction in the American courtroom of law and history. Both cases are generally referred to when American historians discuss the subject of expert witnessing in the US. Yet there are many more examples. Historians have been experts in litigation concerning creationism,28 industrial pollution,29 land rights of indigenous peoples,30 superfund site research,31 water rights of indigenous peoples,32 voting rights,33 tobacco tort litigation,34 historical jurisdiction over rivers,35 lead paint poisoning toxic tort litigation,36 other consumer product tort litigation, and many more issues. I first examine the Brown and Sears cases because of their significance to the American experience of the interaction between law and history. After which, I discuss a case where historians have testified as experts in lead paint poisoning toxic tort litigation to give an example of a general and normal practice of expert witnessing in the US. In a third part, I describe the practical steps a historian goes through as an expert witness in preparation of his or her expert report and court testimony.


7.2.1 Brown v. Board of Education


The Brown case is commonly referred to as landmark case of the US Supreme court from 1954. A young black girl named Linda Brown, was not allowed to enrol in a public school just around the corner of her home. Because of that, the child had to go to a black public school more than a mile away. The issue was taken to court. The lower courts ruled that this was constitutional, following the then accepted legal standard of “separate but equal” education.37 The US Supreme Court’s revolutionary ruling on the case considered state sponsored segregation in public schools to be unconstitutional under the Fourteenth Amendment.38 The court ruled unanimously −9 to 0- in favour of the upheaval of the de jure racial segregation.39 Brown is often seen as one of the moments that sparked the mass civil rights movement of the 1950s and 1960s.40

The case was rife with historical argumentations, although no historian took the stand. Historians were only active as consultants in the case. Historian Alfred H. Kelly, at the time a professor of history at Wayne State University, played an important role in the construction of the historical narrative of the US Supreme Court’s decision in Brown. Under the elegant title “Clio and the Court: An Illicit Love Affair”, Kelly reported his experiences as a consultant for the National Association for the Advancement of Colored People.41 Kelly begins his essay with a historical overview of the instances the US Supreme Court used history to legitimate its decisions, by interpreting the US Constitution as a historical document as early as the year 1787–the same year the US constitution had been drafted.42 This created a sort of law-office history, whose relevance was decided by judicial fiat, and thus according to the legal or political needs of the judges which shifted from time to time.43 History is used by the US Supreme Court “to maintain rather than break constitutional continuity”, Kelly wrote.44 When the court diverts from the precedent, it can simply argue that it has “rediscovered” the true meaning of the constitution just as “the Fathers proclaimed.”45

The Brown case was no different, Kelly writes. The NAACP filed an amicus curiae brief which was “a piece of highly selective and carefully prepared law-office history.”46 The brief “manipulated history in the best tradition of American advocacy, carefully marshalling every possible scrap of evidence in favour of the desired interpretation and just as carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible.”47 Kelly admitted that “his professional integrity was in conflict with his personal feelings about a burning political issue.”48 Another historian, C. Vann Woodward also played an important role in drafting the NAACP’s brief.49 The NAACP’s brief directly influenced the court’s decision in Brown.50 Kelly concluded that “[t]he object of this process is not objective truth, historical or otherwise, but advocacy, i.e. the assertion of a client’s interests.”51 Kelly’s account is a disturbing example of how historical consultancy can fall into the trap of advocacy. However understandable in Kelly’s, Vann Woodward’s, and Franklin’s case and how comprehensible their motives were, their role signifies the power of historical distortion in court.52 The Brown case is a clear example of advocacy, of historical research without peer review or publication, of open partisanship, and of a historian inspired by his own morality, but without adhering to the ethics of professional historical research. Despite all those reservations, Petrovic writes that the Brown case was an important moment for “the legitimization of historians’ legal contribution.”53 The danger of justifying this kind of abuse of history through historical consulting for the “right” moral ethics, lies in the fact that the “right” moral ethics represent a very loosely defined term which can as easily be used by a racist as by civil rights activists. It is therefore important that historians, certainly those active in consulting, are subjected to a minimum of ethical rules through an ethical code.54


7.2.2 Equal Employment Opportunity Commission v. Sears, Roebuck and Co.


The case brought in 1984 against Sears, a big American retail company, by the Equal Employment Opportunity Commission [EOOC], accused Sears of conducting a female unfriendly employment policy on a national level. The EEOC argued that the low number of females, who held high sales positions with a commission in the company, was a consequence of the sexual discrimination policies conducted within Sears. The procedures took several years, from 1984 till 1986. In the end Sears was acquitted.55

Both parties hired the services of a historian as an expert witnesses. The defence recruited theoretical historian Rosalind Rosenberg. The plaintiff needed its own expert to counter Rosenberg’s testimony and enlisted historian and feminist Alice Kessler-Harris to their cause.56 In her personal account, Kessler-Harris writes that she was asked to “rebut her [Rosenberg’s] testimony.”57 Rosenberg based her testimony on the research of other scholars, among them that of Kessler-Harris. Kessler-Harris herself, in contrast, based her testimony predominantly on her own research.58 Rosenberg argued that it was natural for women to be less attracted to stressful and very demanding jobs.59 To Kessler-Harris the argument Rosenberg made was a self-fulfilling prophecy. Kessler-Harris maintained that only a discrimination policy within Sears could account for the lack of women in corporate top functions.60 The Sears case soon became cause for controversy in the historical community. The discussion escalated onto a national level, “with articles in The New York Times and editorials in The Washington Post.”61 The debate was twofold according to historian Katherine Jellison: the first issue was that the testimony of Rosenberg was, to some historians, an immoral act that harmed the feminist movement; the second problem concerned the general role of the historian as an expert in the courtroom.62

When the trial had finished and the verdict had been rendered, both experts had different ideas about testifying in court. Kessler-Harris became a severe critic of the historian’s role in the courtroom. She especially had objections to the capacity of the judge to use her historical research in whatever way he liked. Testifying was too political and was ultimately about utilitarian purposes, according to Kessler-Harris.63 Historian Ruth Milkman who discussed the Sears case, argued that historians should be “self-conscious in their formulations, keeping firmly in view the ways in which their work can be exploited politically.”64 Rosenberg, by contrast, accepted expert witnessing as a valuable activity for historians. “Historical truth and morality had a place in the courtroom”, Rosenberg argued. Furthermore, she gave a counterargument to Kessler-Harris’ objections by stating that: “the political implications of expert testimony differ little from those of historical scholarship in general.”65

The Sears case had a “profound impact on the outlook of historical expert witnessing in the United States.”66 The case raised questions about the use and abuse of history in court. Some historians argued that historians should refuse to testify in court, to prevent the distortion of history because of the “improbability of being faithful to both the demands of their profession and the needs of the lawyer calling on them to testify.”67 Especially the “objectivity question” was discussed at length. How could historians “remain dispassionate observers of historical truth despite their participation in legal proceedings?”68 In general, the Sears case and the controversy that surrounded it had made historians aware of the dangers of testifying in court.


7.2.3 Toxic Tort Litigation: Lead Paint Toxic Tort Litigation


In an article with the alliterative title: The Trials and Tribulations of Two Historians, David Rosner and Gerald Markowitz describe their experiences during two trials, in 2005 and 2007, as expert witnesses on lead paint.69 The litigation concentrated on the question whether the lead paint industry knew they sold a toxic product to their customers and if so, when they became aware of this. If the industry had continued to sell a product they knew constituted a health hazard, the lead paint companies could be held liable for negligence. Historians were hired to determine exactly when the companies became aware of the danger of their products.70 For Rosner and Markowitz their experience was as much a personal as a professional experience. When confronted with the gratitude of the victims they defended, the historians wrote: “It made us realize that history does matter.”71

Their work in the archives produced a book, entitled Deceit and Denial: the Deadly Politics of Industrial Pollution. 72 The book discussed the role of the lead paint industry in creating a public health tragedy. The book was based “literally on hundreds of thousands of pages of company documents.”73 Amongst them many internal documents of the industry which had become available because of the lawsuits.74

The history of lead poisoning presented in court by Rosner and Markowitz did not only provoke discussion about the facts of the case but also about the historical métier itself. Both experts were attacked by lawyers of opposing counsel for not being objective.75 Furthermore, there were discussions about the epistemological status of historical facts.76 Lawyers tried several tactics which have been termed as tactics of “agnotology” by historian and expert witness in tobacco trials Robert Proctor. Agnotology is the study of misleading and providing inaccurate information to create doubt and ignorance about veritable knowledge.77 The defence counsel used such tactics to convince the jury and the judge that the lead paint industry was not aware of the dangers of their product, although scientific research had already proven that lead paint was unhealthy. The only goal for the defence was to prove there was “doubt” about the certainty of the scientific evidence linking lead paint and disease. If there had been doubt, the industry would have been able to avoid its liability. Historians Rosner and Markowitz were hired to testify that there was no controversy and that the industry had continued to sell their dangerous product despite of the scientific evidence. Rosner and Markowitz had played an important role in the trail to prove that the lead paint industry had been negligent.

A very vocal opponent of Rosner and Markowitz is the New York-based lawyer and experienced toxic tort litigator Nathan Schachtman.78 In an article which also had an alliterative title; On Deadly Dust and Histrionic Historians, Schachtman discussed what he called: “[t]he intrusion of historians into the litigation process.”79 Schachtman’s article accuses the historical report of Rosner and Markowitz of being: “tendentious” and “devoid of any empirical support.”80 To him both historians were “advocates and agents of chance” by expressing “biased viewpoints.”81 Schachtman’s main argument is that “historians will usually be inappropriate witnesses because they do not contribute anything beyond what trial lawyers may accomplish through competent proofs and argument to the trier of fact.”82 He continues this idea further on his blog where he titles one text concerning historian’s expert witnesses as follows: “How testifying historians are like lawn-mowing dogs.”83 Schachtman elaborates on his title as follows: “[a]n historian testifying as an expert witness is a bit like a dog cutting your lawn – You don’t care whether the dog mows in a straight line, or cuts too high or too low, or even whether the dog rakes up after cutting. Dogs should not be cutting the grass at all.”84 He continues with the following after Rosner and Markowitz had addressed his accusations in several academic articles: “Caution! Suggesting that historians should not serve as expert witnesses may cause the dog to bite.”85 However entertaining the article and certainly the blog posts by Schachtman may be, his opinion represents the general way lawyers think about historians as expert witnesses.86 Lawyers need historical facts to strengthen their rhetoric, and the historical profession is presented as having a fact finding objective and as a positivist enterprise, which legitimates the historical facts lawyers need.87 When they do not need historical argumentation, lawyers argue to keep history out of the courtroom. Schachtman goes even further and suggests that lawyers without any historical training or experience can do the job of the historian.

After reviewing earlier versions of this book Schachtman wrote a new blog post responding to my discussion of the topic of historians as expert witnesses.88 In his piece Historical Histortions, another alliterative title, Schachtman elaborates further on his overall stance on historians serving as expert witnesses. In reaction to my claim that he suggests that lawyers can do the job of historians he notes the following:

“Given their training and skills in documenting and recounting narratives, lawyers do, indeed, often do the job of historians, and they often do it very well. Of course, lawyers are often guided, inspired, and assisted by professional historians. Sometimes that guidance is necessary. Lawyers’ narratives, unlike historians’, are also subject to judicial control in the form of evidentiary rules about speculation, relevance, reliability, authentication, and trustworthiness.”89

Furthermore, Schachtman confirmed he did not think that the skill sets for the two disciplines were so different.90 Yet Schachtman nuanced his position when he wrote that: “Ramses Delafontaine is wrong, however, to opine that my rants against Rosner and Markowitz suggest that I have ruled out any role for historians in litigation.”91 Schachtman gives an example from In re: Welding Rod Prods. Liab. Litig., a case on welding fume in which historian Lisa K. Walker served as an expert witness and played a positive role according to Schachtman. Having fortified his position with more case law Schachtman concludes in favour of a limited use of expert witnesses to present historical narratives in judicial proceedings.92

Rosner and Markowitz were not only challenged by Schachtman, they were also personally harassed by the chemical companies they witnessed against. Their book Deceit and Denial was subpoenaed as well as every reviewer of it, demanding that they turned over all the documents they had used in preparing their book.93 The all-out attack by the industry provoked reactions from the academic world. Wilthey, director of University of California Press at the time, declared that she had never heard of reviewers being subpoenaed before.94 In The Nation, historian Jon Wiener wrote an article on the attacks on Rosner and Markowitz. His piece begins as follows: “Twenty of the biggest chemical companies in the United States have launched a campaign to discredit two historians who have studied the industry’s efforts to conceal links between their products and cancer.”95 The expert who was recruited by the industry, historian Philip Scranton of the Rutgers University, claimed that Deceit and Denial did not live up to professional expectations.96 Scranton accused Rosner and Markowitz of having “violated the AHA’s and NCPH’s guidelines in six specific areas.”97 Legal attempts to silence and limit the freedom of research of historians who work as expert witnesses are not limited to Rosner and Markowitz, as we shall see when discussing tobacco litigation.98

The “trials and tribulations” of Rosner and Markowitz expose the risks historians take when they testify in court. Their experience also shows that professional historical investigation can prove historical facts, even beyond a reasonable doubt, and defend itself against close scrutiny. Transparency, making research documents available, publication of research, peer review, and so forth are the parameters to test whether historians have conducted their research in a professional manner. Rosner and Markowitz succeeded in making it possible for their peers to review their work. They published a book on their research, Deceit and Denial, which has its own website with extra and easy accessible information.99 Furthermore, the litigation has made many internal industry documents researchable, not only for the expert witnesses themselves but also for other researchers.100 The free accessibility of documents, publications of research results, and peer review allows other historians and researchers to consider if Rosner’s and Markowitz’s testimony was objective. This kind of control from within the historical discipline or intersubjective objectivity, can only be provided if expert witnesses let other historians review their work and their sources, something that is not always the case as we shall see when discussing the expert witnesses who are hired by tobacco companies.


7.3 A Guide to the Practice of Expert Witnessing by Historians


In this topic I give a short overview of the consecutive steps taken by historians before they testify in court. By discussing the way historians prepare for court, we can better understand the construction of historical knowledge in the courtroom. The different phases that are analysed are: consulting, recruitment of the expert witness, and the preparation of the expert report. Furthermore, I discuss the interactions between historians and lawyers. I also analyse three possible ways in which historians can testify in court, namely through direct testimony, cross-examination, and a possible redirect. After which, I discuss the rules of evidence that are applicable to expert testimony. Examining how these rules have developed and why, will enable us to understand how expert testimony is currently defined in the legal discipline.

This chapter is based on a wide array of articles from legal scholars as well as historians. I chiefly discuss personal accounts from historians who have testified as expert witnesses in American courts. In addition, certain phases of the expert witnessing experience are based on unpublished information, on presentations that were given at the session on litigation-driven history at the NCPH conference in Ottawa in April 2013, and furthermore on personal information obtained through informal sources. Not much is published on the pre-trial phases. This is because lawyers try to minimize the paper trail, since there is a risk that opposing counsel will subpoena a document that was used to prepare the expert report. This legal concern creates “grey-zones” in the expert witnessing practice, yet through personal accounts I have been able to present a minimal framing of these interactions. This practical introduction to expert witnessing, allows us to further determine the influences or restraints the legal environment has on historical research and discourse. The chronology of expert witnessing will also serve to better understand the role historians play as expert witnesses in tobacco litigation.


7.3.1 Consulting


Consulting is the first step in the litigation process. In most cases where history comes to court, historians are active as consultants. Only in a small number of cases do historians actually testify. For example, the historian Alfred Kelly, as we mentioned earlier when we discussed Brown v. Board of Education, played a very important role in the case, but solely as a consultant not as an expert witness.101 Generally, historians or specialized companies are contacted to collect and organize documents for a case. The criteria by which the selection of relevant documents is done, is often not made by the consultants themselves, but by lawyers or by the historical expert who is going to testify. The job of historical consultants is thus to find and list documents that answer to the criteria demanded by their client. Furthermore, the consultant also constructs a basic chronology of the historical events that are important to the trial. When original documents cannot be brought to court, they have to be scanned. Original files have to be copied numerous times, because adding labels, like a number or a code, to the documents is considered problematic by legal counsel. Consultants should always have original copies at their disposal. The court demands original and primary documents as evidence. Labels distort such authenticity.

Concurrently set up with the research for primary documentation are databases which contain primary documents digitalized and directly linked with other databases which contain the characteristics of the documents or other historical relevant information for the litigators. Those characteristics are, among others: the physical location, the author(s), the date, and the physical constitution of the document. To make it easier for their clients to use the databases and select important historical material, historical consultants use key words, tombstone information [which contains information on the document], digital colour labelling, and, if necessary, a small synthesis is added. Furthermore, each source also has a unique entry in the database. This systematic handling of documentation makes it easy for clients to rapidly access any possible information on a document, allowing them to reference each document easily in their witness report or legal argumentation. Databases can also show gaps in the historical research, and therefore have the ability to prevent inconsistencies in the witness report. It is also an easy basis for drafting the obligatory affidavits, which list the historical documents witnesses or lawyers are going to use in court. Historical consulting happens in a digital world. Digital compatibility with the clients, to prevent the loss of information, is also very important.

Stuart Manson, the president of Public History Inc., a Canadian historical consulting firm, argued that consulting was a specific kind of historical research.102 In the exposé he gave at the conference on Public History in Ottawa in April 2013 under the title Knowing Your Public in Litigation Research: Specialized Client Requirements and Products, Mr. Mason explained the manner in which his product is created. 103 The consultant gets his order from the client to look for historical documents on a subject. The client can give extra parameters like a date or an author for example. The only thing the consultant does is selecting the documents that fulfil the prerequisites demanded by the client. These selected historical sources are the product of historical consulting. Mason argued that his product was very objective, since the digital client-historian-product relationship exists with almost no decision making by the historians who do the research. Manson declared that historical consulting is a format unlike historical writing, very forward and direct, with a high standard of objectivity and impartiality, because their product was very well referenced and without interference in the research of the personal preferences of the consultant.

The comment above shows how dominant traditional objectivity still is with historians and lawyers. Notwithstanding the fact that Mr. Mason’s company will probably deliver top-notch historical work, which will indeed enable clients to build a very well referenced historical argumentation, their product is only objective in a certain positivist meaning of the word. There is already a subjective and very definitive choice when the client demands a selection of certain historical sources to construct his narrative. Thereby, the client will demand only those sources that best fit his arguments. Furthermore, the client-consult relationship is not one-sided. An historical consultant advises lawyers on which sources will best suit their argument and which documents have the most historical authority. All of these decisions have a very distinct influence on the end-product. Consulting, as any other form of historical knowledge production, is subjective and can only be kept in check with the implementation of ethical codes. Traditional Rankean objectivity remains, to some, not only an intellectual point of view, but is even stressed as a selling point.104


7.3.2 Recruitment of the Expert Witness


Another intriguing stage in the historian’s road to court is his recruitment by clients, mostly law firms. I make a distinction between historical firms which offer expert witnesses and historians who are hired as an individual. Most individual historians, who are not connected to a firm, are academics, but many academics are also employed at historical firms. On the one hand, these academic historians are enlisted by law firms for their erudition, impressive scholarship, and publications on the subject; in short: expert knowledge. On the other hand, high social standing and the fame of their institutions definitely plays a dominant role as well when recruiting experts. This is a point of criticism on the expert witnessing system. Another issue is that high profile experts demand big pay checks.105 This becomes problematic for the equal arms principle in litigation. A party can be faced with a serious disadvantage, when they lack the resources to hire an authority on the historical subject that plays an important role in the litigation, while the other party does have those means. Judges and jury alike are more impressed by an academic from Yale or Harvard than from a small local university. This censure is judgmental, yet the same is true for hiring lawyers. New York or Chicago based law firms have more means and experience than a local law firm. Big law firms have dozens of aids and highly qualified lawyers. Top lawyers have a great advantage since their efficiency is high as repeat players. Repeat players are lawyers or law firms who specialize in one specific kind of litigation, for example tort litigation.106 Expert witnessing, in a way, favours those parties in litigation who are well funded.

But this does not mean a party with limited means cannot hire an expert witness. Some historians will, while others won’t, become a hired gun. Historians have their academic careers and reputations to consider, and working for some industries might put those reputations into question with their colleagues. Other historians have ethical reservations about witnessing in general or about testifying in favour of certain individual clients or companies. Historians are sometimes idealistic and join up with the lesser paying side, as we have seen in the previous topic with Rosner and Markowitz and others.107 Some historians have demands of freedom of research or other preconditions which the client will not be willing to meet. Historians react in very different ways to proposals to testify in court, and every one of them should consider very carefully if they want to take the risk.

The way individual historians are recruited mostly happens through informal networks. Sometimes it can be important that the opposing party does not know that lawyers are looking for expert witnesses. Having a highly esteemed academic historian as an expert witness can be a big asset in court, especially when the opposing party has not bothered to bring their own expert witnesses. Furthermore, expert witnesses have to be trustworthy. In the preliminary tactical conversations, the historian might become disillusioned or might disagree with the tactics of counsel and withdraw his or her participation. Some historians will demand these talks before actually committing. Although they will try not to, lawyers will have to give the historian in question a sneak peak at their legal strategy, and how they wish to incorporate the historical argumentation. All of this revolves around historians being contacted through their personal networks, certainly in high profile cases. The fact that this recruitment happens very informally and through personal e-mail and telephone conversations, makes the recruitment phase of expert witnesses very hard to research.

In contrast to the informally recruited historians, others have made expert witnessing into a full-time job. There are historians who can simply be hired from the net.108 Although it is hard to determine how frequently this happens. Some historians work individually as consultants, but most have found work in firms or have founded their own small firms that offer historical consultation or expert witnessing. In contrast to my previous example, Public History Inc., most companies combine ligation-driven historical research and expert witnessing. Historical Associates Incorporated (HAI), a firm that offers historical research and analyses for litigation, is an example of the latter.109 Most of the published articles on their website read as marketing advertisements.110 This is not surprising because historical consulting firms are part of the free market. They have to compete with other companies and stress their selling points. Another example comes from historian David Rosner, whom I mentioned earlier.111 He received “an odd e-mail” from “the Round Table Group”, a consulting firm that specialized in providing experts from various disciplines for testimony in court. The company sought to add historians to their “consortium of several thousand professors.”112

It is interesting to examine how these firms praise the value of historical testimony in court. History Associates Inc. points to three key advantages of working with historians as expert witnesses. The first is the ability of historians to find critical historical information. An article from Reis and Wiseman, two historians who work at HAI, describes this benefit as follows: “[f]rom the beginning of the litigation process, professional historians can assist lawyers in framing the historical issues central to prosecuting or defending a claim and can assist counsel by serving as an early warning system if the historical facts do not comport with a lawyer’s theory of a case.”113 Such a modus operandi is not compatible with positivist objectivity, yet that objectivity still remains a selling point. The statement that: “[h]istorians pursue objectivity”, is amply used by Reis and Wiseman.114 The second selling point is thus that historians present authentic facts. Lastly, according to History Associates Inc., historians know how to synthesize historic information into well-documented and compelling stories. In conclusion, according to the article, historians deliver a reliable and convincing history. Historians “are trained to convey their findings within the defined scope of their research in plain language and to defend those findings under close scrutiny. Professional historians are well qualified to serve as consulting and testifying experts”, Reis and Wiseman argue.115 Another article by historian Michael Reis praises the skills of the historian to “locate smoking guns when others can’t.”116 For Reis it was clear that: “[h]istorians unearth and make sense of the relevant past in the hunt for the evidence that shapes and sometimes makes the case.”117

This commercially inspired discourse is normal in public history, but may seem strange to academic historians. Consequently, questions arise about historians who become hired guns and public historians who abuse history to fit the needs of their customers.118 Therefore it is important that universities, historical associations, and the consulting firms themselves adopt ethical codes. The most important players are the historical associations and the universities. They should make sure the codes are generally accepted and enforced. Adhering to such an ethical code should be a precondition for joining any historical association. If the historical community as a whole commits to these basic ethical preconditions of the historical craft, then the historians who won’t will be marginalized, leaving them with a distinct disadvantage when competing with historians who have committed to these codes. If these codes are broadly accepted in the historical community and the codes are amply enforced by the historical associations, these codes will be respected by judges, lawyers, and employers alike. Codification of ethical rules is no new idea, other free professions like lawyers and doctors have the same kind of systems to guard their basic ethical rules.119 Codification and reflection on those rules are a condition sine qua non for successful and professional historical research in the public and academic sphere. Another element that can help to maintain standards of ethical and methodical historical research is employment of both public and academic historians as expert witnesses for the same project. Reflection and discussion between academic and public historians can construct and guard a responsible manner in which litigation-driven history can thrive.


7.3.3 Preparing the Witness Report


After the basic stages of consulting and preliminary research, the preparation of the expert report and the testimony begins. Consulting might have been done by a separate firm, but most firms combine both the fact-finding process and the preparation for the testimony. In a presentation entitled The Closest Scrutiny: Aspects of Researching Native American History, given at the Annual meeting of the National Council on Public History in Ottawa, in April of 2013, historian Michael Lawson presented the methods used to prepare an expert report.120 Lawson, who holds a Ph.D. in American history from the University of New Mexico, is a partner at Morgan Angel & Associates, a Washington-based company specializing in litigation-driven history.121

Lawson especially stressed the intensive level of scrutiny to which expert reports are subjected, even more than traditional peer review and editorial process in academic contexts. Journals check the style and substance of the text, the reasonability of interpretations and conclusions, and whether the author’s sources are properly cited. Review of the actual sources in the footnotes is nothing like traditional academic review, according to Lawson. In the litigation environment, Lawson continued, every word and punctuation mark in an expert report is subject to close scrutiny and may be challenged by opposing counsel and their experts. The same is true for every source cited in a report, since the expert must provide copies of every document or publication cited, as supplementary exhibits. Any mistake made in the text or in a citation has the potential of lessening the expert’s credibility or even destroying it.122 Opposing counsel may argue that if the expert could make one mistake in a report, there may be other mistakes that render the entire report suspect. Knowing your audience is very important in court, realizing that opposing lawyers will do anything to discredit the expert witness or his work has to be kept in mind at all times during the construction of a witness report.

To meet such close scrutiny historical firms like Morgan Angel, have adopted operation manuals with standard procedures to ensure the needed level of accuracy.123 The manual demands that all researchers keep a research log, citing and describing all materials they review, whether they use the documents or not. The company also uses a coding system that requires the encoding of every document on the back of every page, not on the front side because the court sees that as a problem to the authenticity of the document. The code tells the name of the researcher who found the document, the date, and the page number. A secondary encoding consists of the physical location of the document, a complete citation, and a brief description. The advantage of the system is uniformity, easy referencing and fast retrieval of sources when new copies need to be made. All of these data are entered into a secured server which is not linked to the World Wide Web. Every single document is then labelled and scanned into another digital database, which is then linked to a secure database. To ensure compatibility with lawyers’ databases and working methodologies, documents are given Bates numbers. The Bates system was designed by Edwin G. Bates in the late nineteenth century in order to promote his invention of the Bates Automatic Numbering Machine. It has since become the standard method used by lawyers to place identifying numbers and/or date/time-stamps on images and documents.124 Historical firms have to be digitally compatible with their clients. The databases can be researched with specially developed software for full-text searches of sometimes hundreds of thousands of documents. This systematic organization allows the construction of witness reports that can withstand even the harshest scrutiny.

The process by which an expert report is made is divided into different stages. The expert designated to make the report, constructs his testimony using the tools we previously discussed to access primary sources with all relevant information at hand. Footnotes can be directly linked to a digital document, which makes reports more user-friendly for readers in the fact checking process, for lawyers and clients alike. When a draft is finished, two other members of the research staff, who are working on other projects, will go over the report. While one person is reading the report, the other person will check its sources. Not only the sources and citations are checked but also whether the interpretations of the author are reasonable, objective, and credible. Some reports are double checked, each time by different editors. Fact checking of expert reports is a tedious process and might take weeks. The fact checking thus involves dozens of eyes, also those of the client, before the report is finalized.

In general, the historical reports filed in court are extremely well documented and are examples of very thorough and professional historical research, despite the fact that these reports are the products of the interaction of legal counsel and historians, and are thus constructed to fit legal strategies. Canadian historian and expert witness Arthur Ray eloquently described the practice as: “Ransacking historical documents for useful and relevant documents.”125 Historians are looking for every scrape of evidence they can get their hands on. This juristic pressure ensures that expert reports turn into well referenced documents full of historical evidence. In addition, the expert report becomes a legal document open to scrutiny by opposing counsel. Historians and their firms cannot produce a one-sided product because of the risk of being discredited by opposing counsel and historians. Historical firms need new clients in the future and will therefore not engage in apparent abuse of historical facts. Similarly, the individual historians will not risk losing his professional status, which is his most important marketing asset, by tempering with historic evidence. This kind of reasoning shows that economic issues not always drive public historians “to sell themselves”, on the contrary. The prospect of attracting customers in the future is another element that forces expert witnesses to remain within the limits of professional historical research.126 Should the appliance of ethical codes be enforced by historical associations and universities, then the cost of abusing history in favour of the clients would only increase, resulting in even less abuse or tendency to abuse historical facts. There is no single version of history, there exists no single master narrative; on the contrary, there are many truths in history. If historians disagree in court, that does not mean that one or both of them are abusing history. Based on their historical research, historians come to different conclusions, which may lead them to support one party or the other in a court case. This is how the adversarial system successfully works. Two historical narratives are offered, and in most cases the judge will find that the truth lies somewhere in the middle.


7.3.4 The Collaboration with Lawyers


This part of the expert witnessing process is shrouded in a veil of uncertainty. Lawyers have an important influence on litigation-driven history. Legal counsel wants historical arguments that fit their legal reasoning. It should be the historian’s job to stand up to overreaching intrusion by lawyers into the liberty of research of historians and their conclusions on their research. Lawyers and historians begin with “in-depth meetings” to determine a research strategy. Afterwards, they stay in “close contact” so that “significant discoveries by the historians can be promptly reported” and “changes in the legal strategy are reflected in the research strategy of the historians.”127

Lawyers refrain as much as possible from using documents, e-mail, faxes, and other means of communications that leave a paper trail, to avoid the risk of being subpoenaed for these documents. Historian Susan Gray, who is an associate professor at the University of Arizona and has served in multiple Great Lakes Indian treaty-rights cases as an expert witness, explained that she “spent hours and hours on the phone with lawyers.”128 Calling is championed over all other means of communication. Keeping written communications and notes to a minimum is an important extralegal strategy.129

Other information on the relationship between lawyers and historians is found in personal accounts of expert witnesses. Historian Charles Bolton, who testified as an expert in a case concerning creationism, wrote that lawyers sent him “a pack of documents” to research and that he, in addition, did some research of his own.130 Historian John Burnham, who served as expert witness for the tobacco industry, reports that “[t]he lawyers decide how to try a case, not the experts.”131 The limited amount of documentation on these interactions is problematic for historians who want to research this important element of the expert witness work, yet it is understandable from a legal point of view.


7.3.5 Witnessing



7.3.5.1 The Deposition


When the consulting phase is over and the witness report is finished the historian prepares to defend his report in court. Firstly, the report is filed with the court, so it becomes available for opposing parties.132 The next step is the deposition. The deposition is an interrogation by opposing counsel of the deposed [the expert witness], who is assisted by his own party’s legal counsel. A court reporter [no judge is present] takes the oath of the deposed and notes everything that is said. The inquiry becomes part of the general trial record. The deposition is part of the discovery process by which each party can obtain evidence from opposing parties. It is meant to gain clarification and additional information. Another goal is to identify weaknesses in the experts’ report or their qualifications as an expert. Some depositions can take only a few hours, others may continue for several days. The discourse in a deposition is formal, yet not as technical as testimony on trial. Expert witnesses try and are instructed to answer in clear formulations and in the shortest possible manner to questions by lawyers.

Questioning usually begins with a short introduction by opposing counsel on the rules of the deposition. One of those rules is that the deposed should not try to add meaning to his arguments by hand gestures or facial expressions, because they are not recorded by the trial reporter, even when the deposition is videotaped. Thereafter, the questioning starts. Questions can be asked in a seemingly random order, covering subjects ranging from professional or even personal matters to the expert report itself. Questions can also discuss a single word or a single citation from the witness report. Lines of questioning can be abandoned, to be returned to hours later, when the witness is expected to be tired and bored, and thus more inclined to let down his or her guard.