In Defense of Historians as Expert Witnesses: A Rebuttal to Jon Wiener


John C. Burnham is Professor of History at The Ohio State University. He specializes in the history of medicine and American social history. His latest book is What Is Medical History? (Polity, 2005). This article is an adapted version of a letter published on H-Net.

The Nation has carried a story by a historian, Jonathan Wiener, about historians’ involvement in the tobacco litigation cases.  I take it from the content, however, that Wiener is writing as a journalist, not a historian.  In so doing, he violates the canon of journalism that one should present both sides of the story.  He names people who declined to be interviewed, with the suggestion that they have something to hide.  I can say that he did not contact me, although I am the most conspicuous figure who has stood up to recent attempts to try such cases in the media without full exploration and presentation of both sides.

The story in The Nation is so written that Wiener is in effect furthering one of the uglier pieces of McCarthyism of the recent American past.  One of the tactics of McCarthyism is to "name names" so as to open the named person to social discrimination and informal sanctions (Originally there was a campaign to "out" so-called homosexuals who held government jobs).  If the named person speaks up to defend herself or himself, it does no good, because the seed of doubt has been sown.  That is, even groundless or unjust accusation can never be effectively countered, especially when it is spread by journalists.  And this is damaging to not only reputations but careers.

There are in fact major issues, some of which have been touched on in professional media among historians who are engaged in offering expert advice.  These issues are difficult enough without being contaminated by attempts to pre-judge issues or to do mind reading by attributing motives to other people.  Personal attacks by historians on historians obscure serious issues.

I wish to do two things.  First, for those who are not fully informed, I want to clarify some of the misunderstandings that underlie the current attempts to mobilize opinion in the current tobacco cases.  Second, I wish to comment on some of the difficulties in approaching professionalism in history

Let me be very clear in making my full disclosure.  I was first called into a case about a quarter of a century ago as a consultant when lawyers new to the field were confronted with a new case based in part on an affidavit by someone who claimed historical authority (n.b.:  contrary to Wiener’s account, the first people to bring an "expert historian" into the tobacco cases were not the defense attorneys, but the plaintiff attorneys, that is, lawyers whose client claimed damage from tobacco).  I was involved in a few other tobacco liability cases, but I have done no work in this field for more than fifteen years, except in one case when the tobacco company archives were irrelevant to the research I was asked to do -- and anyway I was assisting plaintiff counsel, not defense counsel, in a very limited area.  Most of the money paid to me by law firms for historical work went to graduate student assistants and expenses.  I was, of course, limited by my university in the amount of time I could devote to outside consulting.  At the time I was first contacted, I was already working in the field of tobacco and health and was already well along in my pioneer work on the Surgeon Generals’ reports.

In all of the material that I have read attacking historians who consulted or testified for the plaintiffs, I have found consistent misunderstandings of the role of expert witnesses and of the operations of the American justice system in general.

1.  The attacks consistently say that the historians were working for the tobacco companies.  The writers do not understand the difference between in-house lawyers and outside firms who are hired to handle specific cases.  The outside counsel have a limited role to play.  Historians who work for outside counsel are employed by workers in the justice business, not the tobacco business.  This is not a trivial distinction.  Counsel’s focus is not on the business but on the specific issues in the trials or potential trials.

2.  Expert witnesses (and in practice also consultants) are asked to tell what the evidence is on very specific questions.  Expert historians are mere functionaries of the court and do not have the freedom to give lectures or offer personal opinions as one can in a classroom.  The lawyers decide how to try a case, not the experts.

3.  Consultants are bound by the confidentiality between client and lawyer.  Therefore, even the fact that one has privately consulted may be privileged and certainly not something one can publicize without explicit permission.  In the case of witnesses, their role is public information.  For consultants, it is not.  I myself was usually pro bono, a consultant to a series of lawyers on both sides, very carefully not using any information I had from my work for other counsel, but still offering expert advice.  I still do not have permission to publicize my role in any of these cases, including one plaintiff case for which I did paid work.  The demand that those historians who have worked for one side or the other stand up and be counted is therefore not legally possible, and to condemn silence on this point is ridiculous.  There may be similar considerations involved in interviews with journalists.

4.  Many historians observe or use rhetoric to suggest that in the American justice system, wealth disproportionately affects outcomes.  Until the system is corrected, in any trial one does not have the right to discriminate against the rich any more than against the poor (And contrary to Wiener’s contention, all of the lawyers to whom I have spoken informally are contemptuous of the contention that plaintiff counsel have recently been underfunded).  Those who wish to see the justice system made more just (as I am frank to say I do) should work directly and openly for such ends.  Harassing, intimidating, or otherwise condemning colleagues who participate in the legal system begets not change, but other bad effects and does not serve what justice there is.

By the middle of the twentieth century, the ideal role of the professional in society was reasonably well understood.  Historians often claim recognition for their professional status but are unwilling to accept the responsibility that comes with it.  If counsel, as an officer of the court, asks for a professional report on a specific question, the professional has a social role to play, without voicing any private ideas about how the case will or should come out.  Everyone knows that the effort will be imperfect, but one can try.  I once testified in a non-jury trial concerning beliefs about foods in a particular year.  It happened by chance that my personal long-range economic interest was seriously at risk in the outcome of that trial.  What I had found and was asked to testify about, however, was very straightforward, and I reported on my conclusions and produced the evidence on which they rested, even though it was, from one point of view, not to my benefit.  I left the decision to the court.  Lay people have trouble understanding how one expert can testify on both sides of an issue.  One would hope U.S. scholars, at least, could figure out how their system is supposed to work and not blame people who offer their expertise to try to help the courts do a better job.

One of the things that I as a historian find most embarrassing is the fact that many of those who condemn their colleagues for working for law firms on one side or the other are, in fact, either not themselves experts or are not following standard historical practice.  In the tobacco cases, very few have expertise in the history of science and medicine, at least to judge from their inability to characterize laboratory life and changing standards of how to understand disease.  And they certainly show remarkable and thoroughgoing ignorance of American business history.  The most egregious error, however, is applying current standards to judge people who lived and worked many decades ago, a practice rightly condemned as whig history.  I am amazed when historians are unaware of what they are doing and what they do not know.

The greatest pity about all of this artificial brouhaha about historians testifying in tobacco liability cases is that it distracts from some really great historical questions.  One is, of course, why just tobacco? Why not also other addicting substances and behaviors (like gambling) that have afflicted society and, in the case of alcohol, had probably even more adverse effects on people and their society than tobacco?  The insensitivity of many anti-tobacco people is remarkable.  Are the McCarthyites going to go after colleagues who have testified in Indian (i.e. Native American) claim cases because so many tribes have made contracts with exploitive gambling corporations?  Another great question is the change in the leadership in tobacco firms at some point after the 1950s.  To what extent was the change general, and did that change precede, or occur simultaneously with, the general deterioration of corporate leadership that became so obvious at the end of the century?  Some work has been done on advertising and consumerism and gender issues, but much more remains to be done in these realms as well.  The real excitement of history lies very far away from the tissue of assumptions that led to Wiener’s article.

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Marley Greiner - 3/29/2010

Thanks for the clarification, Dr. Burnham. I've not been called as an expert witness yet, but there have been threats to do so! I'm keeping your post. In my own field of "work" I'm afraid whig history is the norm.

Your devoted Ms. Greiner