Ramses Delafontaine, PhD. Candidate, University of Ghent, Fulbright Scholar at Stanford academic year 2015-2016

Proposal Type: Panel

Seeking: Additional Presenters,Seeking Specific Expertise,General Feedback and Interest

Abstract: Historians are searching for ways to engage with the public or to show the social relevance of their work. One arena where history and historians play an increasingly important role is the courtroom. Historians have served as expert witnesses in a wide range of court cases form tobacco and lead-paint tort litigation, cases considering indigenous-peoples land and water rights claims, to superfund site research into historical pollution and many other examples. My recently published book, Historians as Expert Judicial Witnesses in Tobacco Litigation argues that historians testifying in court pose a lot of theoretical and practical issues that are relevant to public as well as academic historians. The Public Historian has from time to time given considerable attention to these historical issues in the courtroom, most notably in its February Issue of 2015.This proposal aims at providing the NCPH conference with a panel that can elaborate further on the publications in the journal by presenting some of the most telling examples of expert witnessing done by historians in the last decade.

Seeking: My proposal envisions a panel of 3 historians who all three have had experiences as an expert witness in court. I will serve as chair. The chair will give a general introduction on the topic. The chair will elaborate on the general and legal nature of expert witnessing by informing the audience on the judicial setting and context and what that implies of historical research, on the ethical implications of working for and lending historical research to an interested party in court, on the challenges that historians face when working with lawyers, and explaining the difference between an expert and a consultant, ect. This general introduction allows the panel members to dive right in to their case study without that all three will have to go the trouble of explaining, for example, expert witnesses evidence rules and their implications for historical testimony. I will try to select three historians who have participated in litigation on one of the following topics: tobacco tort litigation, lead-paint tort litigation, and environmental litigation (superfund site research). Finding historians who are willing will be the tricky part, as some expert witnesses do not want to talk about their legal work. They may legally not be allowed to talk about their work. But is it not a strange attitude for a historian to not talk nor publish on his or her research? Agreeing to become an expert witness, should not mean that you have to sign away your rights to discuss or publish your research in any way. Other expert witnesses, for example a ballistic expert, do not do that either. It is a choice, and it is intriguing why some historians agree with these constringent rules. These three presenters will then answer some of the questions I will have prepared, mostly of a meta-historical nature. Afterwards we will open the floor to questions from the audience. The goal of this panel is to add some new examples and reflections to the February Issue of The Public Historian. Its ultimate goal: fueling a debate amongst historians –public as well as academic- on the role of historians in court. For example in tobacco litigation in the period 1984-2014 in the US over 50 historians have served in 314 court cases. The vast majority -46- on the side of the industry, while only 4 testified for the plaintiffs. And these are conservative numbers, as almost all historians working for the tobacco industry have not published on tobacco history and smoking, nor have they published anything on their litigation-driven work. With remunerations as high as hundreds of thousands of dollars and no peer-reviewed publications or communication on the part of the historians hired by the tobacco companies the question arises whether some historians are willing to trade their reputation and that of their university for the benefit of an interested party. And this is the debate historians should be having now rather than later as history is sure to continue to play a significant role in American courts.

If you have a direct offer of assistance, sensitive criticism, or wish to share contact information for other people the proposer should reach out to, please get in contact directly: Ramses Delafontaine,ramses.delafontaine[at]ugent.be

If you have general ideas or feedback to share please feel free to use the comments feature below.

All feedback, and offers of assistance, should be submitted by July 3, 2015.

Related Topics: Civic Engagement, Litigation-drive history, Theory

 

Discussion

6 comments
  1. Greg Smoak says:

    Hi Ramses,

    One area of expert witness testimony you might explore is that concerning American Indian treaty rights, federal recognition etc. If you are interested I can send you some contact information on potential panelists.

    Best,

    Greg

    1. Dear Greg,

      Thank you for your interest and advice.
      I mailed you for more information.

      All the best

      Ramses

  2. Mattea Sanders says:

    Hi Ramses,

    Have you cosidered recruiting non-American panelists for this as well? There are many historians who do litigation research in Canada especially on First Nations treaty rights and recognition? There was a great panel three years ago in Ottawa on this topic in regards to American Indians.
    -Mattea

    1. Dear Mattea,

      I was in Ottawa as Graduate Student and I was in the session you describe.
      I am currently in contact with historians from Canada who have been working in Indian treaty -related litigation.

      Thank you for your advice and interest.

      Best Wishes

      Ramses

  3. Patrick Cox says:

    Ramses – I have been involved in a number of cases providing expert witness testimony on easements and condemnation cases involving utilities and pipelines. These are quite prevalent throughout the country as environmental and property issues must be addressed. However, frequently historic areas are ignored unless they have received a National Register designation. Most law firms and property owners seldom consider historic use such as settlement patterns and land use but these may provide important and relevant information in these decisions.

    1. Dear Patrick,

      Thank you for focusing my attention to this topic of environmental and property issues, I have contacted you per email.

      best wishes

      Ramses

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