April 28, 2011 Articles

The Historian's Valuable Role in Environmental Litigation

Retaining a professional historian as an expert witness can be useful in avoiding the limited perspective and fading memories of eyewitnesses and the perception of bias.

By Michael C. Reis and W. David Wiseman Jr. – April 28, 2011

When faced with legal matters requiring interpretation of a complex set of historical facts, attorneys can employ at least three strategies to convey the historical story to a trier of fact. First, counsel can rely on the testimony of eyewitnesses, if such witnesses are still alive, have a good recollection of the events in question, and are able to present their inherently limited perspective of the events effectively within the context of other available evidence. Often, numerous witnesses are needed to tell a complete story; frequently, too, due to passage of time or vagaries of memory, there are unavoidable gaps in the firsthand knowledge of eyewitnesses.

A second strategy, perhaps used in conjunction with surviving witnesses, is to present key historical facts as part of arguments in legal memoranda and trial summations. This approach, however, poses significant challenges. Evidentiary issues might arise in authenticating historical documents, and even when they come into evidence, introduction and interpretation of historical evidence solely or largely by party advocates can lead to an unwanted perception of bias with respect to those specific facts—the trier of fact might view the lawyer as an interested advocate rather than as an informed researcher and credible storyteller, and thus view the historical information as argument rather than facts. This approach can obscure, rather than clarify, important historical facts central to a party’s case.

A third strategy, retaining a professional historian as an expert witness, can be useful in avoiding the limited perspective and fading memories of eyewitnesses and the perception of bias associated with advocates relating historical facts. Historian experts, similar to their counterparts in the hard sciences, employ specialized contextual knowledge and a disciplined methodology in their research and analysis, and use a customized and targeted approach to effectively gather and synthesize the available historical evidence and to relate historical facts in a thorough and compelling manner. With increasing frequency, litigators are turning to professional historians and finding them invaluable at several stages of the litigation process. Still, engaging a historian as an expert witness is relatively uncommon.

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