Lawyers as Historians

“It has been said that though God cannot alter the past, historians can; it is perhaps because they can be useful to Him in this respect that He tolerates their existence.”     Samuel Butler

The negligence standard does not require omniscience by the defendant; rather, in products liability law, the manufacturer is expected to know what experts in the relevant field know, at the time of making and marketing the allegedly offending product. In long-tail litigation, involving harms that occur, if at all, only after a long latency period, the inquiry thus become an historical one, sometimes reaching back decades. Combine this aspect of products liability law, with the propensity of plaintiffs to ascribe long-standing, often fantastic, secret conspiracies and cabals to manufacturers, the historical aspect of many products cases becomes essential. The law leaves much uncertainty about how litigants are supposed to deal with uncertainty among experts at the relevant point in time. Plaintiffs typically find one or a few experts who were “out there,” at the time of the marketing, with good intuitions, but poor evidentiary bases, in asserting a causal connection. Defendants may take the opposite tack, but the important point is that the standard is epistemic and the Gettier problem[1] seriously afflicts most discussions in the legal state-of-art defenses.

Scott Kozak in a recent article calls attention to the exercised writings of David Rosner and Gerald Markowitz, who attempt to privilege their for-pay, for-plaintiffs, testimonial adventures, while deprecating similar work by defense expert witnesses and defense counsel.[2] Kozak’s article is a helpful reminder of how Markowitz and Rosner misunderstand and misrepresent the role of lawyers, while aggressively marketing their Marxist historiography in service of the Litigation Industry. Although Rosnowitz’s approach has been debunked on many occasions,[3] their biases and errors remain important, especially given how frequently they have showed up as highly partisan, paid expert witnesses in litigation. As I have noted on many occasions, historians can play an important scholarly role in identifying sources, connections, and interpretations of evidence, but the work of drawing and arguing those inferences in court, belongs to lawyers, who are subject to rules of procedure, evidence, and ethics.

Of course, lawyers, using the same set of skills of factual research and analysis as historians, have made important contributions to historical scholarship. A recent article[4] in the Wall Street Journal pointed out the historical contributions made by William Henry Herndon, Abraham Lincoln’s law partner, to our understanding of the Lincoln presidency.[5] The example could be multiplied.

Recently, I set out to research some issues in my own family history, surrounding its immigration and adjustment to life in the United States. I found some interesting points of corroboration between the oral and the documentary history, but what was most remarkable was what omitted from the oral history, and rediscovered among ancient documents. The information omitted could have been by accident or by design.  The embarrassing, the scandalous, the unpleasant, the mistakes, and the inane seem destined to be forgotten or suppressed, and thus left out of the narrative. The passage of time cloaked past events in a shroud of mystery.  And then there was false memory and inaccurate recall.  The Rashomon effect is in full bloom in family histories, as are all the cognitive biases, and unwarranted exceptionalist propaganda.

From all this, you might think that family histories are as intellectually corrupt and barren as national histories. Perhaps, but there is some documentary evidence that is likely to be mostly correct. Sometimes the documents even corroborate the oral history. Every fact documented, however, raises multiple new questions. Often, we are left with the black box of our ancestors’ motivation and intent, even when we can establish some basic historical facts.

In conducting this bit of family research, I was delighted to learn that there are standards for what constitutes reasonably supportable conclusions in family histories. The elements of the “genealogical proof standard,” set out in various places,[6] are generally regarded as consisting of:

 

  • reasonably exhaustive search
  • complete and accurate citation to sources
  • analysis and correlation of collected information
  • resolution of conflicting evidence
  • soundly reasoned, coherently written conclusion

If only all historians abided by this standard! There are standards for professional conduct of historians,[7] but curiously they are not as demanding as what the genealogical community has accepted as guiding and governing genealogical research.  The Genealogy Standards is worth consulting as a set of methodological principles that historians of all stripes should be heeding, and should be excluded from courtroom when disregarded.


[1] Edmund L. Gettier, “Is Justified True Belief Knowledge?” 23 Analysis 121 (1963).

[2] Scott Kozak, “Use and Abuse of ‘Historical Experts’ in Toxic Tort Cases,” in Toxic & Hazardous Substances Litigation (March 2015), available at < >.

[3] For a sampling of Rosnowitz decontruction, seeCounter Narratives for Hire”; “Historians Noir”; “Too Many Narratives – Historians in the Dock”; “Courting Clio: Historians Under Oath – Part 2”; “Courting Clio: Historians Under Oath – Part 1”; “Courting Clio: Historians and Their Testimony in Products Liability Litigation”; “How testifying historians are like lawn-mowing dogs” (May 2010); “What Happens When Historians Have Bad Memories”; “Narratives & Historians for Hire”; “A Walk on the Wild Side” (July 16, 2010).”

[4] David S. Reynolds, “Abraham Lincoln and Friends,” Wall St. J. (Jan. 29, 2016).

[5] Douglas L. Wilson & Rodney O. Davis, eds., Herndon on Lincoln: Letters (2016).

[6] See generally Board for Certification of Genealogists, Genealogy Standards (50th Anniversary ed. 2014).

[7] See, e.g., American Historical Ass’n, Statement on Standards of Professional Conduct, 2005 Edition, available at <http://www.historians.org/pubs/Free/ProfessionalStandards.cfm> (last revised January 2011). For histories that live up to high standards, see Annette Gordon-Reed, The Hemingses of Monticello: An American Family (2009); Timothy Snyder, Black Earth: The Holocaust as History and Warning (2015). But see David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the On-Going Struggle to Protect Workers’ Health (2006).

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