Historian v.

Historian: Interpreting the Past in the Courtroom

Author(s): Hal K. Rothman
Source: The Public Historian, Vol. 15, No. 2 (Spring, 1993), pp. 39-53
Published by: University of California Press
Stable URL: http://www.jstor.org/stable/3377944
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Historians in Litigation S u p p ort
Historian v . Historian:
Interp reting th e P ast in th e
tou rtroom
HAL K. ROTHMAN
HIS TORIANS ARE NO LONGER an u nu su al sigh t in th e cou rtroom. S ince
th e 1950s, h istorians h av e been activ e in legal p roceedings as exp erts and
adv ersaries. Historians now fu nction in a range of roles and cases, offering
th eir exp ertise to p rosecu tion and defense in civ il, criminal, and adminis-
trativ e p roceedings. Th ey h av e become v alu ed consu ltants to th e legal
p rofession, often h olding th e p ower to sway ju dges and ju ries. S ome kinds
of cases, su ch as th ose adju dicated u nder th e P otentially Resp onsible
P arties (P RP ) clau se of CERCLA more commonly known as th e S u -
p erfu nd Act cry ou t for h istorical testimony. l Oth ers, su ch as cases in
wh ich an ongoing p attern of allegedly illegal beh av ior with roots in a
h istoric time in wh ich th e beh av ior was sanctioned, dep end on h istorical
ev idence to sh ow continu ity. S till oth ers u tilize h istory as context, exp lain-
ing actions and decisions of th e p ast by th e v alu es of th eir time rath er th an
th e p resent.
Th e v alu e of h istorians in th e cou rtroom dep ends on th eir ability to
p resent a credible interp retation of th e situ ation in qu estion. History in
th e cou rtroom is far from an academic exercise. Historians mu st be able to
offer an interp retation th at ap p ears relev ant to th e case, is based on
ev idence, and squ ares with th e ju dge's and ju ry's u nderstanding of th e
ways of th e world. Th e cou rtroom testimony of a h istorian is a commu nica-
tion p rocess with th e p otential to v astly influ ence imp ortant p roceedings.
Yet each cou rt case is u niqu e, driv en by factors far beyond th e role and
1. Comp reh ensiv e Env ironmental Resp onse, Comp ensation, and Liability Act, 42
United S tates Code, S ections 9601-9675.
39
Th e P u blic Historian, Vol. 15, No. 2 (S p ring 1993)
(C) 1993 by th e Regents of th e Univ ersity of California
and th e National Cou ncil on P u blic History
40 * THE P UBLIC HIS TORIAN
scop e of h istorians as exp ert witnesses. Winning a case can h inge on th e
p redisp osition of th e ju dge and th e lev el of p rep aration of cou nsel. Attor-
neys do not always u nderstand th e ways in wh ich a h istorian can be u sefu l
to th em, or conv ersely, damage th eir case. S ome attorneys seek to inte-
grate th eir witnesses into th e case; oth ers seek to limit contact to ev ery-
th ing bu t th e sp ecific issu es to wh ich th e h istorian will testify, recognizing
th at greater p articip ation can lead to ch arges th at th e attorney influ enced
th e exp ert's testimony.
Few cou rt cases actu ally tu rn on a h istorian's p ersp ectiv e, bu t v ery
often, th e credibility of h istorical testimony serv es as a frame th rou gh
wh ich to v iew th e sp ecific ev ents in a case. A h istorian wh ose testimony is
allowed to stand u nch allenged may be a dev astating op p onent, wh ile
u sing an attorney to ch allenge th at testimony entails risks of its own.
Cou ntering a h istorian with anoth er h istorian also p resents difficu lties.
S u ch decisions, always th e p rov ince of attorneys, p lay an imp ortant if
u nderestimated role in th e stru ctu re of a case and consequ ently in th e end
resu lt.
In a recent federal cou rt case, Nav ajo Nation and Watch man et al. v .
S tate of New Mexico, th e v alu e of u nch allenged h istorical testimony
p layed an influ ential role in th e final decision. Th e case resu lted from a
decision in 1985 by th e New Mexico Dep artment of Health and Hu man
S erv ices (HHS ) th at affected th e disp osition of fu nds from Title XX of th e
S ocial S ecu rity Act. Beginning in 1973, HHS fu nded a Title XX p rogram
for th e Nav ajo Nation th at allowed h ome h ealth care for many elderly,
disadv antaged Nav ajos. Th is h ome h ealth care p rogram was one of many
p rograms fu nded th rou gh Title XX in New Mexico and becau se of th e
v ast need on th e Nav ajo reserv ation, grew to be th e single largest exp endi-
tu re in th e state's Title XX bu dget. Yet desp ite th e large su m exp ended on
th e reserv ation, th e p rop ortion of money sp ent remained smaller th an th e
p ercentage of Nav ajos cou nted in th e state's p op u lation for Title XX fu nd-
ing p u rp oses. In 1985, th e state agreed to fu nd th e p rogram at th e 1984
lev el, bu t faced with last-minu te ch anges th at resu lted from th e need to
fu nd federally mandated citizens adv isory boards, later cu t th e fu nding by
40 p ercent. No oth er p rogram was cu t at all. Th e Nav ajo Nation su ed,
argu ing th at by redu cing th e fu nding to its h ome h ealth care p rogram, th e
state h ad illegally inju red needy Nav ajo p eop le. 2
Lead attorney Henry Howe of th e Nav ajo Nation sou gh t to strength en
h is case with a th en-nov el tech niqu e. Faced with a situ ation in wh ich h is
clients h ad been singled ou t for fu nding redu ctions wh ile oth er non-
Indian p eop le wh o were demonstrably not as needy retained th eir ser-
v ices, Howe sensed th at th e beh av ior of th e Anglos and Hisp anos-
2. Nav ajo Nation and Watch man, et al. v . S tate of New Mexico; Ju an R. Vigil, in h is
official cap acity as S ecretary of th e Neu Mexico Hu man S erv ices Dep artment, Civ il No. 86-
0576 M, U. S . District Cou rt for New Mexico, S econd Amended Comp laint for Declaratory
and Inju nctiv e Relief and Damages.
HIS TORIAN V. HIS TORIAN * 41
S p anish -sp eaking nativ es of New Mexico wh o made th e decision to cu t
fu nding migh t be gov erned by p re-existing feelings toward Nativ e Ameri-
cans in general and Nav ajos in p articu lar. Cu riou s abou t th e relationsh ip
between th e Nav ajo and th e v ariou s incarnations of New Mexico, Howe
decided th at an ap p rop riate witness on th e su bject wou ld be a h istorian. 3
Th e Nav ajo p eop le and th e colony, p rov ince, territory, and state of
New Mexico h av e a long h istory of acrimony. From th e time th e S p anish
colonized New Mexico, th ey sou gh t to transform nativ e p eop les into Ch ris-
tians wh o wou ld accep t a limited role in S p anish cu ltu re wh ile p rov iding
S p anish society with economic and material wealth . Wh ereas th is p attern
was relativ ely su ccessfu l with sedentary and agricu ltu ral P u eblo p eop les,
it failed with th e Nav ajo. As th e Nav ajo gained access to Eu rop ean tech nol-
ogy and h orses, th ey became a dangerou s enemy of th e colony, u ncowed
by its religion or military p rowess. Codified into New Mexican lore was an
attitu de th at made th e Nav ajo p eop le to be feared. 4
Th is attitu de p ersisted into each and ev ery incarnation of New Mexico.
If th e S p anish colony was weak, its su ccessor entity u nder Mexico was
more so. Nav ajos dev elop ed a p attern of raiding th e colony du ring S p an-
ish ru le th at th e P lan of Igu ala and its aftermath did little to end. P lagu ed
by a lack of resou rces, infrastru ctu re, and military p ower, th e new nation
of Mexico cou ld do little to p rotect its p erip h ery from Nav ajo incu rsion.
Th e situ ation was so bad th at wh en General S tep h en Watts Kearny en-
tered S anta Fe in 1846, th e first p romise h e made was to p rotect its p eop le
from Nav ajo incu rsion. Nearly twenty years later, th e American military
kep t th at p romise, exiling th e Nav ajo to sou th eastern New Mexico. A
military battle h ad been won, continu ing th e adv ersarial p attern th e
Americans inh erited. 5
3. Henry Howe, telep h one conv ersation with Hal K. Roth man, May 17, 1990.
4. Bill P . Acrey, Nav ajo History: Th e Land and th e P eop le (S h ip rock, N. M. : Dep art-
ment of Cu rricu lu m Materials Dev elop ment, Central Consolidated S ch ool District # 22,
1988), 35-44, 73-81; Raymond Friday Locke, Th e Book ofth e Nav ajo, 4th ed. (Los Angeles:
Mankind P u blish ing Comp any, 1989), 35-61; Frank McNitt, Th e Indian Traders (Norman:
Univ ersity of Oklah oma P ress, 1962), 270-76; Rich ard Wh ite, Roots of Dep endency: S u bsis-
tence, Env ironment, and S ocial Ch ange among th e Ch octaws, P awnees, and Nav ajos (Lin-
coln: Univ ersity of Nebraska P ress, 1983), 236-49; Robert S . McP h erson, Th e North ern
Nav ajo Frontier, 1860-1900: Exp ansion Th rou gh Adv ersity (Albu qu erqu e: Univ ersity of
New Mexico P ress, 1988), 1-50; William Y. Adams, S h onto: A S tu dy of th e Role of th e
Trader in a Modern Nav ah o Commu nity, Bu reau of American Eth nology Bu lletin 188
(Wash ington, D. C. : Gov ernment P rinting Office, 1963), 37-39; Elizabeth A. H. Joh n,
S torms Brewed in Oth er Men's Worlds: Th e Confrontation of Indians, S p anish , and French
in th e S ou th west, 1540-1795 (Lincoln: Univ ersity of Nebraska P ress, 1975), 58-154; Urs
Bitterli, Cu ltu res in Conflict: Encou nters Between Eu rop ean and Non-Eu rop ean C2sltu res,
1492-1800 (S tanford: S tanford Univ ersity P ress, 1989), 20-51; Jack D. Forbes, Ap ach e,
Nav ah o, and S p aniard (Norman: Univ ersity of Oklah oma P ress), 55-63; Frank McNitt,
Nav ajo Wars: Military Camp aigns, S lav e Raids and Rep risals (Albu qu erqu e: Univ ersity of
New Mexico P ress, 1972)12-13.
5. Dav id J. Weber, Th e Mexican Frontier, 1821-1846: Th e American S ou th west Under
Mexico (Albu qu erqu e: Univ ersity of New Mexico P ress, 1982); Locke, Book of th e Nav ajo,
35-61.
42 * THE P UBLIC HIS TORIAN
Up on th eir retu rn from exile, th e Nav ajo ceased to be a formidable
th reat to th e territory of New Mexico, bu t th ey were not integrated into
its stru ctu re. A Nav ajo economy ap art from th at of th e rest of th e territory
continu ed, and wh ile relations were p eacefu l, Nav ajos and New Mexicans
were clearly different p eop le in different worlds with little resp onsibility
to one anoth er. Th at p attern continu ed into th e twentieth centu ry. 6
Most of th is information was readily av ailable from p u blish ed h istories
of th e Nav ajo and of Indian/Wh ite relations. Wh ile mu ch of th e work
focu sed clearly on federal relations with Nav ajos, a su bstantial u ndercu r-
rent existed th at demonstrated a New Mexican p attern of antip ath y to-
ward th e Nav ajo. Th ere was noth ing new or earth -sh aking abou t th e
p ersp ectiv e. Howe merely needed to find th e kind of h istorian wh o cou ld
credibly exp ress th at context as su p p ort for more tech nical legal p oints
th at h e sou gh t to sh ow.
Initially, Howe contacted au th ors of p u blish ed h istories of th e Nav ajo.
Distingu ish ed sch olars su ch as P eter Iv erson of Arizona S tate Univ ersity,
Lawrence Kelly of North Texas S tate, Donald P arman of P u rdu e Univ er-
sity, and oth ers were asked if th ey wou ld consent to testify. Becau se Howe
waited u ntil th e last minu te to decide th at h e needed h istorical testimony,
all were u nav ailable. 7 He ev entu ally settled on a you nger sch olar, Hal K.
Roth man, wh o h ad not p u blish ed directly on th e Nav ajo, bu t h ad exp ertise
in federal p olicy and relations in th e West and was in th e midst of p rep aring
a h istory of a national p ark area on th e Nav ajo reserv ation.
It was a calcu lated risk, both th e h istorian and th e attorney recognized.
Wh ile v iable in certain areas of th e case, th e h istorian recognized th at
Indian/Wh ite relations were not h is strongest area. He su ggested trying a
nu mber of oth er p eop le, bu t in th e end, Howe insisted.
Op p osing cou nsel Joh n P ou nd of Montgomery and Andrews of Albu -
qu erqu e was faced with a difficu lt situ ation. His assessment was th at th e
Nav ajo case was sp eciou s; an early administrativ e ru ling th at reliev ed th e
state of its resp onsibility for a v erbal p romise to continu e fu nding at th e
lev el of p rev iou s years enh anced h is confidence. In p rep aration for th e
dep osition, h e p lanned a strategy of h is own.
P ou nd focu sed on an u ncomfortable reality for h is op p onents: p rev iou s
federal ru lings h ad determined th at discrimination h ad to be p ersonal in
ch aracter. In most cases, th e law h eld th at p laintiS s h ad to demonstrate
intent to su ccessfu lly claim bias. Institu tional discrimination h ad yet to be
accep ted as a v iable legal concep t. As a resu lt, P ou nd believ ed th at th e
h istorian's testimony was not relev ant to th e case. In h is v iew, Howe
wou ld h av e to demonstrate th at Ju an R. Vigil, th e state S ecretary of
Hu man S erv ices, and th e oth er indiv idu als wh o made th e decision bore
p ersonal animosity toward th e Nav ajo.
6. Wh ite, Roots of Dep endency, 218-313.
7. Henry Howe conv ersation with Hal K. Roth man, May 17, 1990.
HIS TORIAN V. HIS TORIAN * 43
Th is p ersp ectiv e influ enced P ou nd's determination not to seek anoth er
h istorian as a witness to cou nter th e p laintiS s h istorian. Hiring anoth er
h istorian wou ld negate th e argu ment h e sou gh t to make, for a h istorian
testifying th at New Mexico bore no animosity toward Nav ajos wou ld ele-
v ate th e testimony of th e oth er h istorian to a lev el of resp ectability th at
P ou nd did not grant it. A dangerou s maneu v er cou ntered recognizes th e
imp ortance of th e original mov e. Instead, P ou nd sou gh t to exclu de th e
h istorian's testimony on th e grou nds it was irrelev ant to th e case. 8
P ou nd's ch oice was reasonable. Recognizing th at h istorical testimony
cou ld do significant damage to h is case, h e sou gh t to h av e it eliminated. In
a cou rtroom, th e tru th becomes th e interp retation of admissible ev idence.
Exclu ded testimony, h owev er tru e, relev ant, or material, h as no bearing.
P ou nd was comfortable th at in th e selected v enu e, a bench trial, a ch al-
lenge to th e testimony wou ld yield h im a satisfactory resu lt.
In front of Ju dge Edwin L. Mech em, th e former gov ernor of New
Mexico and a sp onsoring member of th e New Mexico Historical S ociety,
th e case was h eard in U. S . District Cou rt in Albu qu erqu e in S ep tember
1990. Th e case dep ended on a nu mber of featu res. Howe h ad to sh ow th at
th e Nav ajo h ad been singled ou t for th e fu nding cu t. With th e testimony
of th e defendants, h e was able to sh ow th at no oth er alternativ e was
considered. He also h ad to sh ow th at th e effect of th e cu t was to dep riv e a
constitu ency of serv ices entitled to th em by law. A nu mber of Nav ajos,
from recip ients of th e p rogram to its administrators, exp lained th e way in
wh ich p eop le were h u rt by a lack of access to h ealth serv ices. With mu ch
tangible ev idence of damage, Howe sou gh t to link th e two facets of h is
case togeth er. Not only were th e Nav ajo damaged by an u nfair deci-
sionmaking p rocess, h e asserted, th ey were singled ou t becau se th ey were
Nav ajo.
P u tting th e different kinds of ev idence togeth er requ ired mu ch skill.
Howe sou gh t to sh ow th at not only did th e state decide to cu t Nav ajo
fu nding in a cap riciou s manner, officials made a decision th at was in
ch aracter and scop e indistingu ish able from th e h istory of gov ernmental
decisions by th e v ariou s incarnations of New Mexico. Th at kind of contex-
tu al information cou ld only be credibly su p p lied by a h istorian.
As exp ected, Howe p u t h is h istorian on th e stand. After th e p reliminar-
ies, Howe asked th e h istorian to state and su bstantiate any formed op inion
abou t th e natu re of relations between New Mexico and th e Nav ajo p eo-
p le. P ou nd objected, argu ing th at th e testimony h ad no bearing on th e
case. He asked th e witness if h e h ad degrees in p sych ology, if h e was
p ersonally acqu ainted with th e indiv idu al defendants, and if h e h ad p er-
sonal knowledge of th eir attitu des toward Nativ e Americans. Th e witness
answered no to all th ree qu estions, and P ou nd asked for th e exclu sion of
8. Dep osition of Hal K. Roth man, in Nav ajo Nation and Watch man, et al. v . S tate of
New Mexico, Ju ne 6, 1990, Albu qu erqu e, New Mexico.
44 * THE P UBLIC HIS TORIAN
th e testimony. Ju dge Mech em decided to h ear th e testimony before h e
determined if it was admissible. He th en tu rned to th e witness and su g-
gested th at th e testimony remain brief.
Th e h istorian gav e h is commentary, emp h asizing th e continu ity of atti-
tu des and beh av ior toward th e Nav ajo ov er a 300-year p eriod. He demon-
strated not only h istoric animosity, bu t decisions reach ing into th e 1980s
th at dep riv ed th e Nav ajo of edu cational facilities, h ealth care, sch ool ser-
v ices, and a range of oth er gov ernment-fu nded p rograms taken for
granted elsewh ere in th e state and nation. In some cases, local gov ern-
ment u sed federal money directed for Nav ajos to serv e oth er constitu en-
cies; in oth er instances, Nav ajo requ ests for inclu sion in th e distribu tion of
federal fu nds to p rograms were denied. With more th an th irty examp les,
at least ten of wh ich were more recent th an 1970, th e inference was
strong. 9
Bu t it remained only p art of an argu ment. Th e case also h inged on
wh eth er th e qu estion merited federal adju dication. P ou nd contended th at
th e fu nding redu ction was really an administrativ e decision. Th e ofEcials
wh o made th e decision engaged in rou tine dep artmental p rerogativ e as
th ey did in many similar instances in th e cou rse of th eir u su al workday.
Wh en th e trial ended, th e waiting game began. Ju dge Mech em took
th e case u nder adv isement. Howe felt th at th e trial h ad gone well and th e
h istorian's testimony h ad been h elp fu l, bu t in h is v iew, th e entire case
h inged on th e ju dge's ru ling on th e h istorian s testimony. Howe's case was
bu ilt arou nd th e p remise of a long-standing p attern of discrimination th at
led to th e circu mv ention of a reasonable and fair decisionmaking p rocess.
With ou t th e h istorian's testimony, h e h ad noth ing more th an th e sp ecific
case in qu estion, a decision th at cou ld clearly be interp reted as with in th e
administrativ e ju risdiction of th e dep artment.
Nearly six month s later, Ju dge Mech em decided th e case in fav or of
Nav ajo. He ru led th at th e decision was in fact arbitrary and cap riciou s,
dep riv ing a constitu ency of its reasonable sh are of federal fu nding. In
addition, h e noted th e h istorical testimony, remarking th at it demon-
strated a p attern of discrimination th at h ad deep h istoric roots. Th e ju dge
also accep ted th e h istorian's contention th at th ere were legitimate reasons
for th e actions of th e p ast, bu t no basis for th eir continu ation in th e
p resent. Th e discriminatory attitu de, th e ju dge agreed, was a relic of an
earlier, more adv ersarial time su bconsiou sly translated into th e modern
era. Th e Nav ajo were awarded th e money taken from th e p rogram in
1985. Th e state began to p rep are its ap p eal. 10
Th e contextu al v alu e of h istory h elp ed make th e Watch man case. With -
ou t it, th e p laintiS s attorney wou ld h av e been forced to contend th at one
9. Hal K. Roth man, testimony in Nav ajo Nation and Watch man, et al. t; . S tate of New
Mexico, S ep tember 11, 1990, U. S . District Cou rt, Albu qu erqu e, New Mexico.
10. Ju dge Edwin L. Mech em, "Findings of Fact and Conclu sions of Law," in Nav ajo
Nation and Watch man, et al . r . S tate of New Mexico, filed Ju ly 15, 1991.
HIS TORIAN V. HIS TORIAN * 45
decision, v iewed in a v acu u m, h ad discriminatory intent. With th e h istori-
cal testimony, h e h ad a p attern of similar p ractice dating from th e 1600s
th at h ad nu merou s twentieth -centu ry examp les. He cou ld assert th at th e
New Mexican attitu de toward Nav ajos was as mu ch a legacy of being born
th ere as was a fondness for green ch ile. S u bstantiated with h istorical
ev idence- docu ments, p ronou ncements, actions, and images a sh aky
assertion became a su p p orted allegation th at ap p eared to h av e some bear-
ing on th e case.
P ou nd also p layed h is situ ation well. Recognizing th e p otential damage,
h e sou gh t to exclu de th e testimony, rath er th an enh ance its credibility by
cou ntering it directly. If th e ju dge accep ted h is contention th at p recedent
determined th at discrimination h ad to be p ersonal rath er th an stru ctu ral
or institu tional, th en th e testimony p resented little th reat to h is client.
Had th e ju dge agreed with h is argu ment, a directed v erdict for th e defen-
dant wou ld h av e been th e only logical ou tcome.
Yet h ad h e been able to find a h istorian wh o cou ld credibly testi* th at
New Mexican-Nav ajo relations h ad been cordial since stateh ood, P ou nd
may h av e been able to negate th e h istorical testimony. Conflicting ex-
p erts often cancel each oth er ou t, for as th ey contradict each oth er, th ey
lose a large p art of th e au ra of au th ority in wh ich exp ert testimony is
cloaked. In comp etitiv e situ ations, testimony becomes a p ersonality or
credibility issu e, with ju dge or ju ry accep ting th e testimony of th e ex-
p ert th ey find more believ able. In th is case, th at stru ctu re wou ld h av e
th rown op en th e qu estion of context. As it was, th e p laintifUs context
went u nch allenged as an accou nt of th e h istoric ev ents th at bore u p on
th e decision. As a resu lt, after th e ju dge accep ted th e p laintiffs scenario,
no oth er v ersion to consider existed, and th e decision seemed a foregone
conclu sion.
An exp erienced litigator, P ou nd may h av e missed a way to ch allenge
th e p articu lar h istorian in th e Watch man case. He cou ld h av e sou gh t to
exclu de th e witness-instead of h is testimony on th e basis th at h is ex-
p ertise on federal p olicy was not germane to th e case. Th e h istorian
h imself recognized th e p ossibility, asking Howe wh at th ey sh ou ld do if
th at ev entu ality occu rred. Howe th ou gh t it u nlikely and tu rned ou t to be
correct. Bu t if P ou nd h ad sou gh t th e exp ertise of anoth er h istorian wh o
h ad su ggested su ch a ch allenge, th e case cou ld easily h av e tu rned ou t
differently. Inexp erience at reading h istorians' resu mes may h av e been
defense cou nsel's greatest weakness in Watch man v . New Mexico.
More often, h istorians find th emselv es on op p osite sides of a legal
qu estion, debating th e significance of a sp ecific set of information. In
Execativ e Manor Inc. v . Kansas Gas and Electric, a case inv olv ing th e
p ollu tion generated by a h istoric coal-gasification p lant7 th e same h istorian
and anoth er member of h is academic dep artment, H. Craig Miner, fou nd
th emselv es on op p osite sides of th e case. In th is instance, th eir interp reta-
tions differed greatly, bu t th e factu al information from wh ich th ey general-
46 * THE P UBLIC HIS TORIAN
ized was essentially th e same. Th eir concu rrence led to th e resolu tion of a
p rotracted and comp licated case.
A P RP case, EMl v . KGE rev olv ed arou nd th e resp onsibility for p rodu c-
tion of coal gas, th e relationsh ip between Kansas Gas and Electric (KGE)
and its p redecessor comp anies, and th e qu estion of wh o demolish ed th e
facilities on th e site of th e first coal gas p lant in Wich ita, Kansas. Th e case
began wh en Execu tiv e Manor Inc. (EMI), a h otel h olding comp any, p u r-
ch ased a v acant lot on wh ich to constru ct a p arking garage for one of its
h otels. Du ring p lanning, th ey discov ered th at th e site was contaminated
by a range of toxins inclu ding benzine. Clean-u p costing more th an
$500,000 was mandated by law, bu t th e P RP clau se in CERCLA allowed
EMI to recov er th e cost from any existing comp anies resp onsible for th e
p ollu tion. Historical research was essential to determine wh o was resp on-
sible and if th ey were extant.
Th e p rop erty h ad been an integral p art of th e h istory of energy deliv ery
in Wich ita. In fact, th e case sh owed clearly th e dev elop ment of th e u tility
stru ctu re of Wich ita as well as its transition from coal gas- commonly
called artificial gas to natu ral gas and electricity. On th e location of th e
p lanned p arking garage, th e Wich ita Gas, Electric, P ower, and Ligh t
Comp any constru cted in 1883 a p lant in wh ich coal was bu rned to make
th e kind of artificial gas u sed before th e discov ery and widesp read trans-
mission of natu ral gas. Th e p rocess was comp lex, and it created a nu mber
of toxic by-p rodu cts. Noneth eless, for more th an twenty years, a series of
comp anies op erated th e p rimary sou rce of gas p ower in Wich ita from th at
location.
By 1905, a new kind of fu el h ad reach ed Wich ita. Natu ral gas was far
more efficient and reliable th an th e artificial gas it rep laced. Artificial gas
was widely u np op u lar; its deliv ery was so intermittent th at local wags
referred to th e streetligh ts it p owered as "lifeless, slobbering blinkers. ''ll
Th e ru sh to embrace th e new fu el began. Bu t th e p rocess requ ired tech -
nology and cap ital.
Th e tech nological transformation rev olv ed arou nd a local entrep reneu r,
J. O. Dav idson, wh o h eaded a syndicate th at bou gh t th e existing coal gas
comp any, Wich ita Electric Ligh t and P ower, and its facilities. He fu sed
th em with anoth er of h is h olding comp anies for natu ral gas, and created
th e United Gas Comp any. Nearly simu ltaneou sly, Dav idson secu red a
th irty-year exclu siv e righ t to deliv er electric p ower in th e city to match h is
twenty-year concession to deliv er gas serv ice. By th e middle of 1907, h e
h ad th e makings of th e u tility emp ire h e sou gh t to bu ild.
In 1909, Dav idson began to cap italize on h is h oldings. He enticed
Electric Bond and S h are Comp any of New York (EBS Co) to absorb
United Gas and its p arallel electricity-p rodu cing cou nterp art, Edison
11. Ch arles Coffin to Wich ita City Cou ncil, Au gu st 12, 1886, no. 124, box 13, miscella-
neou s p ap ers, City of Wich ita.
HIS TORIAN V. HIS TORIAN * 47
Electric, in exch ange for sh ares of stock in a new h olding comp any, Ameri-
can P ower and Ligh t. American P ower and Ligh t th en created a p riv ately
h eld su bsidiary, Kansas Gas and Electric, to ru n its facilities in sou th
central Kansas. Alth ou gh KGE began as a p riv ate u tility, it became p u blic
in th e 1920s and later took on th e "p u blic serv ice comp any" ap p ellation so
common among American u tilities. In 1990, it was th e sole deliv erer of
electricity to sou th central Kansas. 12
In th e p rocess of dev elop ing J. O. Dav idson's u tility emp ire, artificial
gas was su p p lanted by natu ral gas. Th e new fu el was ch eap er and more
efficient; it trav eled th rou gh smaller p ip es u nder greater p ressu re and was
th erefore easier to deliv er. Natu ral gas was abu ndant in Kansas, and after
1905, smaller towns and cities from th e Missou ri border to th e central p art
of th e state were h ooked to natu ral gas p ip elines. In Wich ita in 1907,
natu ral gas was u sed to ligh t a sp ectacu lar wh eel th at illu minated an entire
city p ark. A rep lacement p rocess h ad begu n. 13
Alth ou gh natu ral gas offered far greater reliability and better h eat and
ligh t, deliv ery to h omes requ ired laying new p ip e. Th e large-diameter
p ip e th rou gh wh ich artificial gas was deliv ered was too weak to h old th e
natu ral gas, deliv ered at a mu ch h igh er p ressu re. As a resu lt, an entire
new system of mains h ad to be laid u nderneath th e streets of Wich ita.
Th is was a comp licated p rocedu re th at took an u ndetermined amou nt of
time. Noneth eless, a rev olu tion in tech nology and deliv ery occu rred in a
relativ ely brief p eriod of time. Before 1905, coal gas was th e sole sou rce of
h eat deliv ered to Wich ita fu rnaces; by 1912, it h ad been comp letely re-
p laced by natu ral gas from nearby fields.
Th e case rev olv ed arou nd th e deliv ery of artificial gas by th e United
Gas Comp any. Dav idson's comp any clearly distribu ted artificial gas, bu t
th e date of cessation of deliv ery was an imp ortant op en qu estion in th e
case. Newsp ap er accou nts indicated th at th e comp any annou nced it h ad
ceased deliv ery in Nov ember 1907, bu t th e same p ap er carried an accou nt
of p eop le p rotesting th e termination of th eir serv ice nearly one month
later. 14 In discov ery, th e p rocess in wh ich th e op p osing side learns wh at
ev idence will be u sed in a case, KGE p rodu ced no records to su p p ort th e
newsp ap er accou nts. Th e p laintifFs attorneys, Robert Driscoll and M.
Elizabeth Kirkland of S tinson, Mag, and Fizzell of Kansas City, requ ested
any records p ertaining to cessation of th e deliv ery of coal to th e coal gas
p lant, information regarding th e remov al of artificial gas p ip ing, mu ch
12. Hal K. Roth man, "Th e First Coal-Gas P lant in Wich ita: 132 N. Waco," (Kansas City:
Execu tiv e Manor Inc. , 1988); "Rep ort of H. M. Byllesby Comp any," 1909, KGE Arch iv es,
19. In 1992, KGE was p u rch ased by Kansas P ower and Ligh t (KP L), wh ich h ad p rev iou sly
only offered natu ral gas in th e Wich ita area. Based in Kansas City, KP L was th e largest
u tility in western Missou ri and Kansas.
13. Wich ita Eagle, Janu ary 30, 1907.
14. Wich ita Eagle, May 29, 1907; Wich ita Eagle, S ep tember 5, 1907; E. D. Wilson to R.
N. Dorr, October 14, 1907, #375, Box 35, miscellaneou s p ap ers, City of Wich ita Clerk's
Office; Wich ita Eagle, Nov ember 10, 1907; Wich ita Eagle, December 17, 1907.
48 * THE P UBLIC HIS TORIAN
larger in diameter th an natu ral gas p ip e, from Wich ita, and any docu men-
tation sh owing any commu nication th at establish ed a p ermanent cessation
of deliv ery of artificial gas. None was forth coming. l5
Th e cessation of deliv ery of artificial gas was one of th e th ree most
imp ortant issu es in th e case. If KGE cou ld conclu siv ely sh ow th at it h ad
nev er deliv ered artificial gas, its liability migh t be limited on one major
p oint. Bu t if no conclu siv e date cou ld be establish ed, th e qu estion re-
mained op en.
Th e two h istorians h ired in th e case assessed th e newsp ap er accou nts on
wh ich KGE's p osition rested. KGE's witness, a senior h istorian wh o sp ecial-
ized in bu siness h istory, accep ted th e newsp ap er accou nts desp ite th eir
contradictions. He was able to marsh al a v ast array of circu mstantial ev i-
dence, bu t no official corp orate docu ments to su p p ort h is contentions.
EMI's witness, a you nger env ironmental h istorian trained in th e era of
su sp iciou sness th at followed th e Watergate scandal, was more skep tical. In
dep osition, h e reasoned th at a comp any th e size of KGE th at was able to
p rodu ce oth er docu ments from th e United Gas era inclu ding th e minu te
books of oth er Dav idson-owned and op erated energy comp anies cou ld
su rely p rodu ce some kind of decommissioning docu ment. Fu rth ermore,
h e p ointed ou t th at KGE's ch arter in 1910 exp ressly mentioned artificial gas
as a p rodu ct th at th e comp any was formed to offer. l6 One of th e th ree
qu estions seemed to tu rn on th e way in wh ich h istorians interp ret sou rces.
Based on th eir backgrou nd, exp erience, and p ersp ectiv e, th e two h is-
torians disagreed. Th e senior p erson was willing to accep t newsp ap er
testimony at face v alu e. Mu ch of h is p u blish ed work, inclu ding two
h istories of Wich ita, relied on similar ev idence. l7 His exp erience in
bu siness h istory indicated th at a comp any th at was trying to close down
its artificial gas op eration in th e winter of 1907-08 wou ld not be offering
th e same serv ice in 1910 u nless coerced. Th e env ironmental h istorian
was not conv inced. He h ad worked with th e same newsp ap er in oth er
p rojects and h ad fou nd it typ ical of tu rn-of-th e-centu ry p ap ers in its
boosterism and h yp erbole. It fu nctioned as a v oice for bu siness, rep ort-
ing at face v alu e th e contentions of"p rominent" p eop le wh ile discou nt-
ing th ose wh o op p osed th em. He recognized th at th e newsp ap ers
sh owed a p attern, bu t was u ncomfortable with th e lack of fu rth er docu -
mentation. He also discov ered instances in wh ich United Gas cou ld not
deliv er adequ ate qu antities of natu ral gas, rev ealing th at th e p rice of an
imp lement to u tilize th e new natu ral gas mains exceeded th e range of
most working p eop le. Th is led h im to believ e th e transition to natu ral
15. Robert Driscoll to Hal K. Roth man, Au gu st 20, 1991.
16. Craig Miner to Dav e Erickson of Blackwell, S anders, Math eny, Weary, and Lom-
bardi, re: Rep ort, Execu tiv e Manor case, October 15, 1991, 14-19; dep osition of Hal K.
Roth man, EMI t;. KGE, Au gu st 20, 1991.
17. H. Craig Miner, Wich ita: Th e Early Years, 1865-1880 (Lincoln: Univ ersity of Ne-
braska P ress, 1982) and Wich ita: Th e Magic City (Wich ita: Wich ita-S edgwick Cou nty Histori-
cal Mu seu m Association, 1988).
HIS TORIAN V. HIS TORIAN * 49
gas took more time th an KGE asserted and offered th e p ossibility th at
some artificial gas was sold to cu stomers well into 1910. It. seemed
p rep osterou s to h im th at KGE cou ld p rodu ce a rep ort from 1912 th at
sh owed th e p lant was not op erating, bu t cou ld not find any of th e many
kinds of records su ch as cessation of coal deliv ery, decommissioning of
th e p lant, a rep ort from an insp ector, or someth ing else th at wou ld
conclu siv ely establish a date of termination. With ou t corroboration, h e
cou ld not accep t th e newsp ap er accou nts as p rima facie ev idence.
Th e op p osing h istorian worked to exp lain away th is reality with some
su ccess. He p ointed ou t some of th e p roblems with a skep tical line of
reasoning, u sing ev idence th at su ggested added weigh t to h is circu m-
stantial argu ment. He noted th at in 1909, J. O. Dav idson said th at th e
comp any wou ld h av e to bu ild a new artificial gas p lant to offer su ch
serv ice, p ointed ou t th at du ring cold snap s in 1909, th e sales of coal
and oil stov es, wh ich did not u se any p rodu ct deliv ered by p ip eline,
increased, and disp layed oth er damaging circu mstantial ev idence. l8 Bu t
th e h istorian for KGE did not p rodu ce a cessation docu ment of any
kind, leav ing th e comp any op en to ch arges th at it su p p ressed p otential
dynamite.
An ironic situ ation dev elop ed. Th e two h istorians agreed on th e ev i-
dence th at was relev ant. Rep orts by each of th em cited th e same docu -
ments and establish ed th e same basic ch ronology, and th ey were in agree-
ment ov er th e ev ents th at cou ld be docu mented. One ev en cited th e
works of th e oth er in h is rep ort. Th ey disagreed abou t th e meaning of th e
p ieces of th e p u zzle th at were missing.
Two oth er p oints were imp ortant to th e case. Th e relationsh ip between
United Gas and KGE was cru cial. If EMI cou ld sh ow th at KGE and
United were in essence th e same comp any with different names, su cces-
sorsh ip migh t be establish ed. Under th e P RP ru les, su ch a relationsh ip
wou ld make KGE resp onsible for th e actions of United, rendering th e
qu estion of KGE's p rodu ction of coal gas immaterial. In th is instance, th e
senior h istorian marsh alled h is v ast exp erience in bu siness h istory to sh ow
th at th e "absorp tion" in th e words of KGE's first ch airman of th e
board-of United Gas was a typ ical maneu v er of th e time, and th e cre-
ation of KGE by Electric Bond and S h are of New York made th at com-
p any, not KGE, its su ccessor. KGE sp lit away from EBS Co du ring th e
1920s wh en it became a p u blicly h eld u tility. l9
Th e env ironmental h istorian was less concerned with th is issu e, recog-
nizing th at from h is client's p oint of v iew, one su ccessor with figu rativ e
"deep p ockets'> was as good as anoth er. Bu t h e did sh ow th at th e boards of
directors of United and KGE were interlocking, local officials remained
th e same after th e creation of KGE, and KGE traded on th e goodwill
18. Miner, October 15, 1991 rep ort, 17-21.
19. Miner, October 15, 1991 rep ort, 20-31.
50 * THE P UBLIC HIS TORIAN
establish ed by United Gas. 20 Th ere was su icient ev idence eith er way, a
situ ation th at called for ju dicial discretion and leR attorneys on both sides
of a mu ltimillion dollar disp u te u ncomfortable.
Th e th ird p oint of contention inv olv ed th e qu estion of demolition of th e
facilities. EMI p u rch ased a v acant lot from wh ich all su rface stru ctu res
h ad been remov ed. S anborn fire insu rance map s sh owed th at th e p lant
h ad been intact in 1934, bu t by 1940, h ad been demolish ed. S anborn
map s insp ire confidence; neith er h istorian requ ired fu rth er p roof of th e
date of demolition. KGE owned th e p rop erty from 1910 u ntil 1946. A1-
th ou gh th e h istorian for KGE sou gh t to argu e th at du ring th e time p eriod,
th e decisions were made by EBS Co, on one of th e th ree p oints, th ere was
little dou bt th at KGE was cu lp able. 2l
In th is case, both p laintiff and defendant were h ard-h eaded. Desp ite
nu merou s op p ortu nities for settlement th at wou ld h av e cost each some
money bu t minimized ou tlay for attorneys, exp erts, and oth er exp enses,
both sides sou gh t to win th e case ou trigh t. Th is confou nded a nu mber of
th e attorneys and both h istorians. In an effort to sp read any p otential
liability among any oth er p ossible p arties, KGE added EBS Co, Boise-
Cascade, wh ich h ad p u rch ased th e comp any th at owned th e p rop erty
after 1946, th e City of Wich ita, and th e h eirs to th e tru st set u p by th e
p ost-1946 owners as ancillary defendants. Th is action allowed th em to
sp read p otential liability among a nu mber of p ossible entities and signaled
an u nwillingness to comp romise. In late Au gu st of 1991, th e case seemed
to be h eaded for a bench trial.
Bu t Kansas administrativ e p ractice in legal cases forced a comp romise.
Before trial in Kansas, su its of th is natu re are h andled by a magistrate wh o
h as v ast leeway. Th e magistrate interp rets th e ru les u nder wh ich dep osi-
tions occu r and determines oth er imp ortant attribu tes of th e case. After
rev iewing th e ev idence, p articu larly th e h istorians' rep orts, th e magis-
trate called th e p rincip als and th eir attorneys togeth er. He told th em th at
becau se th e case sh ou ld be settled with ou t a bench trial, th e ev idence was
conclu siv e, and th e h istorians agreed on imp ortant p oints, h e was going to
mandate a p re-trial settlement. Th en h e locked ev eryone in a room with
h im and told th em th at no one was going anywh ere u ntil th ey reach ed an
accord. More th an twelv e h ou rs later, th e case was settled and th e deci-
sion sealed from p u blic scru tiny. 92
In th is case, th e interp retiv e testimony of th e two h istorians became
irrelev ant. Wh at was imp ortant was th at th ey agreed on enou gh of th e
p oints of fact, from th e dates of accu rately ch ronicled ev ents to th e time of
20. Roth man, "132 N. Waco," 31.
21. S anborn Fire Map for Wich ita, Kansas, 1940, (New York: S anborn Insu rance Com-
p any, 1940), 9. Th is map is av ailable on microfilm in th e Ablah Library of Wich ita S tate
Univ ersity; Miner, October 15, 1991 rep ort, 39-40.
22. M. Elizabeth Kirkland, telep h one conv ersation with Hal K. Roth man, October 20,
1991.
HIS TORIAN V. HIS TORIAN * 51
demolition of stru ctu res on th e p rop erty, to conv ince th e magistrate th at a
cou rtroom trial was u nnecessary. Desp ite obstinate clients, th e h istorians
were able to tell a clear enou gh story to comp el a settlement.
P erh ap s more imp ortant, both h istorians maintained a lev el of credibil-
ity th at h elp ed resolv e th e case. Th e h istorian for th e p laintiffdid not seek
ou t KGE as th e cu lp rit, bu t rath er p resented th e h istory of th e p rop erty
u nder its v ariou s owners. Th is gav e KGE mu ch of th e information it
needed to identify oth er p otentially liable entities. Th e h istorian for th e
defense affirmed h is cou nterp art's assertion of th e exact date of demoli-
tion, doing significant damage to h is client's h op es of escap ing th e situ a-
tion with ou t liability, bu t p rev enting an u np leasant cou rtroom su rp rise for
KGE. Unlike many oth er kinds of exp ert witnesses, th e h istorians in KGE
v . EMI fu nctioned as h istorians rath er th an as adv ocates. Th eir work in
th is case will make th e attorneys for both sides more likely to h ire h istori-
ans in fu tu re cases.
Th at credibility and p ercep tion of objectiv e analysis, h owev er u nfash -
ionable in some qu arters, is an imp ortant p art of maintaining th e p osition
of h istorians in th e cou rtroom. As arbiters of th e p ast, h istorians h av e a
p ecu liar fu nction. Th e p u blic and ev en th e legal system generally p er-
ceiv e h istory as an objectiv e set of facts th at is static in natu re; th e docu -
mentary ch aracter of mu ch h istorical ev idence and th e reliance of th e
legal p rofession on a similar mode of p rov ing assertions enh ances th at
p ercep tion. In th e cou rtroom, h istorians become th e p rism th rou gh wh ich
th e p ast is reflected. Th ey can sh ap e th e way in wh ich th e cou rt will v iew
th e ev ents in qu estion. Th e natu re of h istorical ev idence su ggests th at
th eir interp retation is objectiv e. In reality, of cou rse, it is merely a more
nu anced and ev alu ated form of interp retation.
Yet oth er discip lines fail to disp lay th e illu sion of objectiv ity in th e
manner in wh ich h istorians are so su ccessfu l. P sych iatric testimony h as
been su sp ect since its introdu ction. From th e case of Ch arles Gu iteau ,
James Garfield's assassin, to th e Alger Hiss case, ev alu ators of th e mind
h av e relied on th eory to interp ret th e necessarily messy workings of th e
h u man p sych e. Anth rop ologists fall p rey to similar p roblems. Th e attemp t
of th e Mash p ee Indians to become a federally recognized tribe fell sh ort
largely becau se of th e inability of th e Nativ e Americans' exp erts to link
wh at th ey p erceiv ed with wh at th ey cou ld docu ment. Assertions abou t
th e natu re of Indian tribes seemed fu zzy and amorp h ou s. Worse still in
th e allegedly imp artial cou rtroom v enu e, th e anth rop ologists wh o testi-
fied for th e Mash p ee exp ressed clearly articu lated cosmologies th at as-
serted th at th e Indians h ad been u nfairly disadv antaged and were some-
h ow morally su p erior to th eir op p onents. Th ey h ad stu died th e Indians so
long th at th ey seemed to lose th eir sch olarly distance. As a resu lt, th e
adv ocacy bu ilt into ev ery stage of th eir argu ment rang h ollow to a local
ju dge and ju ry wh o p erceiv ed th e world in a different manner and h ad an
inv estment in th e statu s qu o. Th e exp ert witnesses failed to set u p a
52 * THE P UBLIC HIS TORIAN
context in wh ich to frame th e p redicament of th e Mash p ee. Desp ite th e
good intentions of th ose su p p orting th e Nativ e Americans, th e cou rt de-
cided against granting th e Mash p ee tribal statu s. 23
Bu t th ere is a lesson in th is for h istorians. S ome h istorians p erceiv e th e
p ast as more th an a body of ev idence, and increasingly th e field is ch arged
with p olitical electricity. S ome p ositions are seen as morally accep table,
and th ose wh o do not adh ere to th em ru n th e risk of ostracization and cap ri-
ciou s p ersonal criticism. S ome h av e felt th e p ressu re. Imp ortant sch olars
su ch as Carl Degler and Kath ryn Kish S klar admitted th at in th e S ears case,
th ey refu sed to testify for S ears becau se "th ey disliked ch allenging feminist
orth odoxy. " Oth ers embraced su ch allegedly moral distinctions abou t th e
p ast. As imp ortant a sch olar of Nativ e Americans as James Axtell h as been
qu oted as saying h e refu ses to testi* against Nativ e Americans no matter
h ow strong th e case against th em. Oth ers may tailor th eir comments to fit
th e slant of th eir client. Anoth er distingu ish ed h istorian, Wilbu r R. Jacobs,
argu es th at some h istorians fu nction as p rofiteers, rou tinely testifying
against Nativ e Americans wh o rarely can afford h igh -p riced consu ltants. 24
No matter h ow clear th e ev idence in any situ ation, it can always be
interp reted in myriad ways. In th ese two cases, oth er interp retations
migh t h av e been v alid, cou ld h av e been adv anced, and cou ld h av e altered
th e decisions. Bu t in both cases, h istorical testimony worked becau se it
reflected th e realities th e cou rt already u nderstood and seemed to exp ress
a credible v ersion of th e p ast. Desp ite instances in wh ich h istorians and
th eir work h u rt th e side th at emp loyed th em, th ese traits are wh at th e
legal p rofession requ ires of h istorians.
Th e p roblem for h istorians begins if too many h istorians ally th emselv es
with one side or anoth er, one cau se or anoth er. Historians wh o p resent
different p ersp ectiv es on sets of ev idence and weigh th em fare better th an
th ose wh o adv ocate one p ersp ectiv e or anoth er. Wh at makes h istorians
su ccessfu l in cases like EM1 v . KGE is th at th e ideological content of th eir
testimony is su bsu med in th eir interp retation of th e ev idence, not bra-
zenly stated as a bold-faced p remise. All testimony, like all h istory, is
colored by th e mediu m th rou gh wh ich it is transmitted.
23. Ch arles E. Rosenberg, Th e Trial of th e Assassin Gu iteau : P sych iatry and Law in th e
Gilded Age (Ch icago: Univ ersity of Ch icago P ress, 1968); Eric F. Goldman, Th e Cru cial
Decade and After: America, 1945-1960 (New York: Random Hou se, 1960) 101-32; Jack
Camp isi, Th e Mash p ee Indians: Trtbe on Trial (S yracu se, N. Y. : S yracu se Univ ersity P ress,
1991). Camp isi's adv ocacy is p articu larly clear in h is recou nting of th e trial, wh en h e p re-
su mes th at h is assu mp tions abou t th e natu re of th e p ast are th e onlv ones th at h old. Th e
argu ment h e asserts h e deliv ered in testimony failed to take accou nt th e h istorical natu re of
Indian-Wh ite relations, su bstitu ting th e u nsu bstantiated claims of lndians and a long and
seemingly u seless debate abou t wh at constitu ted a tribe for th e kind of information necessary
to p rov e th eir contentions in a cou rtroom. P art of th is was clearly th e resu lt of th e differences
in th e way th at lawyers and anth rop ologists define and demonstrate tru th . P art of it was th e
anth rop ologist's inability to frame h is argu ment as anyth ing more th an an adv ocate's stance.
24. Kath erine Jellison, "History in th e Cou rtroom: Th e S ears Case in P ersp ectixe," Th e
P u blic Historian 9 (Fall 1987), 9-19; Albert L. Hu rtado, "P u blic History and th e Nativ e
American," Montana: Th e Magazine of Western History 40 (S p ring 1990) 58-69.
HIS TORIAN V. HIS TORIAN * 53
Th e v iability of th e h istorian in th e cou rtroom dep ends on th e credibil-
ity of th e discip line. In areas of medicine, some p h ysicians make careers
ou t of exp ert witnessing, rou tinely taking cases and esp ou sing th e client's
p ersp ectiv e. Th e resu lt h as been a v ast decline in standing of medical
exp ert witnesses in th e cou rtroom; in cases inv olv ing p h ysicians it h as
become rou tine to ask witnesses on th e stand abou t th e nu mber of times
th ey h av e testified in similar cases. P h ysicians may also be asked abou t th e
amou nt of time th ey sp end analyzing th e information from wh ich th ey
deriv e th eir conclu sions. In th ese situ ations, v ast exp erience h as become
a liability, an affront to credibility.
Wh ile h istorians face no su ch dilemma at th is time, th e p otential exists.
Th e range of issu es th at requ ire h istorical content or context is growing,
and more and more h istorians see p articip ation in th e legal system as a
v iable means to imp art th eir knowledge. Bu t th e cou rtroom is a difficu lt
p lace for h istorians. Being an exp ert on p ast ev ents is not always su ffi-
cient. Historians mu st be able to p resent a credible v ersion of th e p ast, a
u sable p ast, based on clear and su bstantiable ev idence. In th e most tricky
p art of th e cou rtroom for h istorians, th at ev idence mu st squ are with th e
interp retation of th e ju dge and ju ry with ou t p andering or catering to th e
needs of th e client or seeming to do so. Th e cou rtroom is not a p lace for
h istorical th eory or meth odology. Nor is a mere recitation of th e facts
adequ ate. Historians in th e cou rtroom are arbiters of information, con-
du its to u nderstanding th e context in wh ich th e decisions of th e p ast took
p lace. Th e credibility of th e p rofession requ ires th at in th e cou rtroom,
h istorians remain h istorians. As h istorians become commonp lace in th e
cou rtroom, retaining th at credibility will become more difficu lt.