Science and Law
9th June 2015

Building a Case Through History

When the central questions of a case are rooted in past events, and arguments must be framed in the context of earlier times, historians can be extremely valuable experts. For decades, lawyers have called upon historians to uncover critical records, reconstruct past events, create compelling narratives, and provide expert testimony on what happened in the past and why.

Building a Case Through History

This post was authored by Kenneth Lipartito, Ph.D. and Patricia A. Watson, Ph.D. of the Business History Group. Kenneth Lipartito is Professor of History at Florida International University in Miami and Principal in the Business History Group. An award-winning author of books on the history of business and technology, he has served as an expert witness and consultant in cases involving lead, asbestos and other consumer products. Patricia A. Watson is a historian of medicine and Principal of the Business History Group. She has worked with a wide range of business clients, including Merck, PriceWaterhouseCoopers, WSJ Online, American Express and L’Oreal, and provided expert historical research in cases involving lead, asbestos and PCBs.

For more information on the Business History Group: http://www.businesshistorygroup.com/

When the central questions of a case are rooted in past events, and arguments must be framed in the context of earlier times, historians can be extremely valuable experts. For decades, lawyers have called upon historians to uncover critical records, reconstruct past events, create compelling narratives, and provide expert testimony on what happened in the past and why. Alongside the more familiar figures of doctors, scientists, and engineers, historians can play vital roles in litigation.

Historians specialize in explaining the present by tracing events back through time to their origins. This makes history a natural discipline for any case involving legacy issues or which touch on events that occurred deep in the past. The skills of the historian are often needed when dealing with materials and substances used long ago that still remain in the environment, such as lead, asbestos and PCBs. They are equally valuable in cases involving products that were commonly consumed in the past but later were shown to be dangerous or unhealthy, such as tobacco. CERCLA and other environmental cases draw on historians to identify potentially responsible parties from the past and figure out how much each contributed to the hazard. Sometimes responsible parties ask historians to track down insurers who may have underwritten environmental liability policies for acquired firms; other times insurance companies hire historians to determine who else might have owned the property in question. The research skills of the historian can be used to assess claims of land use and water rights, recover and interpret documents to establish corporate succession, and evaluate disputes over trademarks and copyrights. Historians have even contributed to gender discrimination claims and public memory cases involving victims of past atrocities.

Professionally trained historians are adept at teaching the judge and jury what the “state-of-the-art” was at various points in time and giving a concise timeline of the evolution of knowledge. In this way they can provide the context needed to understand events and practices that occurred in a world much different from the present. Historians are proficient at diving into earlier milieus to explore the public’s knowledge and awareness of products such as tobacco and asbestos when new science was just emerging. In fact the historian explains the significance of changes in scientific knowledge and technologies and their impact on the broader scientific and medical communities.

Experts at finding lost or forgotten information, historians act as detectives, tracking down people to figure out who did what, when and why. They unearth relevant documents in unlikely places and piece together what really happened from the traces and fragments left from the past. This sort of work has successfully opened up new avenues for further discovery and presented litigators with new lines of argument.

Creative research and new information can help win cases. Historians’ professional training in the techniques of archival research allows them to uncover vital new information that contributes to understanding the facts and the broader context of those facts. Just as important, historians are capable of presenting the information they uncover in compelling ways. Skilled in the arts of narrative, they are often the best witnesses to testify about the history of a company or client when a case goes beyond living memory. Applying the methods of historical explanation, they can offer conclusions and fill in gaps in the record with historically valid deductions and extrapolations, when no single document or particular testimony can provide the overarching answer.

In forthcoming posts we will explore specific examples of history in action in the courtroom, and illustrate the contributions historians have made to a range of cases.

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