Historical questions often arise in legal controversies. Frequently these questions concern what a law’s drafters meant the law to do. Lawyers usually answer such questions themselves using standard legal techniques and incorporate their findings in briefs or other legal arguments. They may also cite the work of historians in their briefs.
At other times, however, the questions are more concerned with the factual context in which the law is being applied than with what the lawmakers meant. In such cases, lawyers are more likely to ask historians to present their views directly to the court in the form of expert testimony.
As expert witnesses, scholars become direct participants in a process designed to determine a party’s rights, rather than researchers whose work is made available to the world at large. As a result, the decision to testify is different and, in some ways, more complex than the decision to publish.
As an academic lawyer who engages in both litigation and research, I have been asked to comment on the decision that historians and other scholars face when they are asked to testify as expert witnesses. My comments take the form of a series of simple questions scholars should ask themselves before they undertake to serve as expert witnesses. I would urge anyone contemplating such an undertaking to seek out other concerned litigators and scholars to help in thinking through the answers to these questions:
1. What do you know about the case and how can you find out more? This includes thinking about who sought you out and how their position is likely to affect their presentation of the case.
2. What are the legal and factual is sues in the case? The relationship between legal and factual issues are intricate. Consider, for example, some arguments made for and against criminal sodomy statutes. Originally passed for moral reasons, statutes proscribing certain types of sexual activity are now defended for health as well as moral reasons. As a matter of constitutional law, the kinds of interests that a court will find sufficient to justify the restrictions such statutes impose on individuals and how effective the court insists the law must be in serving those interests will depend on whether the court finds the law violates the right of privacy.
Consequently, gay rights activists and others who challenge such laws argue that because these laws violate the right of privacy, the laws must be very effective in serving a competing state interest. For this reason, activists may seek to show that such sodomy laws are counterproductive as a health measure. In this connection, they might present testimony from a historian who has studied effects of such laws as public health measures. Such an expert might describe the US Army’s difficulties in combating venereal disease during World War I as a result of the severe disciplinary actions soldiers faced if they admitted to having venereal disease.
What are the practical and political consequences of your side winning?
In opposition, the state could take several tacks. It could present an expert to dispute this account of the Army’s experience or explain it in terms of factors that have no relevance today. It could argue that the historical testimony in fact showed that the Army’s policy did serve some health purpose, even if it wasn’t entirely effective. Or it could argue as a legal matter that the law’s objective could be moral and therefore it had no obligation to show that the law was effective as a health measure.
Particularly where the relationship between legal and factual argument is this complex, your view as to who is in the right usually depends on whose le gal theories as well as whose facts you accept.
3. As posed, do the legal issues capture the underlying problems you see raised by the case? To what extent can the legal issues be shaped to address your concerns?
For example, Griggs v. Duke Power Company, an important employment discrimination case, involved a challenge to a high school diploma requirement for blue collar jobs on the grounds that although the requirement was “fair in form” it had an obvious negative impact on the employment of North Carolina blacks. If, as has often been the case with other anti-discrimination laws, Title VII’s ban on employment discrimination had been interpreted to prohibit only those practices that explicitly called for different groups to be treated differently, the diploma requirement would stand. But, because the plaintiffs lawyers were successful in pressing an interpretation of Title VII that barred neutral practices that have a disparate impact on protected groups and that are not justified by a business necessity, the diploma requirement fell.
Similarly, job descriptions that include work hours and other unpleasant conditions that may make women un willing to take the jobs and also make such jobs difficult for all workers, might be untouchable under the disparate treatment theory of discrimination.
Under the theory of discrimination recognized in Griggs, however, the way the employer organizes the work might be challenged as having a disparate impact on women. If successful, this approach would lead to better employment conditions for all workers. Talking with concerned litigators should be particularly useful in helping you to under stand whether the law has a similar potential for addressing the problems you see in the case before you.
4. What are the consequences of your participation? This question obviously has many aspects. How big a help will your testimony be? What are the practical and political consequences of your side winning?
Consider the recently decided case brought by EEOC against Sears. Al though it is difficult to predict the full political impact of a decision, one might want to consider whether a victory for the EEOC would lead people to minimize the impact of other obstacles to equal employment so that women will ultimately be worse off. Similarly, one might want to consider whether a victory for Sears would aid opponents of affirmative action programs.
Furthermore, what are the advantages or disadvantages to experts testifying? Is it a way of showing support for certain political positions, as in political trials of the Vietnam era? Is there a danger in discrimination cases that historical or other expert testimony not grounded in the particular facts of the case will reinforce the idea that it is acceptable to make generalizations about particular groups? Finally, will testimony based on a particular theory be helpful to a result you seek in one type of case but counterproductive in another?
5. To what extent will the litigation process allow you to control your testimony? In theory, witnesses, particularly expert witnesses, are totally responsible for their own testimony. In practice, however, lawyers for your side often play a big role in shaping testimony by choosing what questions they will ask, by closely reviewing written reports experts submit to the other side and, at times, to the court, and by going over answers experts plan to give to anticipated direct and cross examination. The process of cross examination may also lead you to distort or exaggerate your views. Your relationship with the lawyers, your understanding of the process, and the nature of the issues may all affect your ability to control the process.
6. What are your options? Realistically, you can participate in a case by testifying for one side or another or you can sit it out. Once you are called as a witness for one side or the other, there is really no possibility that you will be perceived as a “neutral” expert. Even in the rare event that the court calls an expert, the testimony will be analyzed as helping one side or another. Although publishing your views in an academic context clearly involves declaring loyalties, testifying has more direct and immediate consequences.
There is a risk that the effect of spelling out these questions will be to discourage Perspectives readers from ever serving as expert witnesses. That is not my intention. Rather, I wish to point out that more elements go into the decision to testify than the right of free speech. Discussion with others can bring much to the process of making a responsible and intelligent decision about becoming an expert witness.
Nadine Taub is a professor of law at Rutgers Law School, Newark, where she also serves as Director of the Women's Rights Litigation Clinic.
